August 24, 2019

Archives for July 9, 2015

The Culture of Law (Part 1): Peace of Mind

rhodes“The best way to predict the future is to create it.”
Dennis Gabor, Nobel Prize Winner in Physics

Since the first of the year, we’ve been talking about the future of law. We’ve seen how the practice of law is undergoing a massive paradigm shift, mostly driven by technology, entrepreneurialism, and worldwide trends such as democratization and commoditization. We’ve looked at how these forces are changing law practice and lawyers, and we’ve speculated about how all this will ultimately change the law itself.

We’ve seen that the future of law isn’t out there somewhere, waiting to descend on us, but that paradigms shift if and when we embrace them, and that the new normal of the future is ours to shape and own to the extent we choose to engage with it. We can make the future happen, or we can let it happen to us. The former is challenging but rewarding; the latter is a quick trip to curmudgeon status.

I.e., we’ve seen the future, and it is us. Which is why it’s time to talk about the culture of law. The law of the future requires the law culture of the future. Culture is the context in which the future will occur. If we understand what culture is and where it comes from, we can most effectively shape both the law and its future — again, if we choose to do so.

Why would we want to? For our own peace of mind, for one thing. Quite literally. As we’ll see, culture is a brain thing. Culture takes shape in our brains, our brains then shape our minds, our minds shape our behavior, and — voilà! — culture happens. When we’re out of sync with this process, the result is disruption and dissonance in our brains. We become cognitively impaired in a profession that requires all the cognition we can give it.

Peace of mind isn’t a luxury, it’s enlightened self-interest. Cognitive wellness thrives on it. We need it to think, learn, analyze, decide, make sound judgments. We need it to be ethically competent. Successfully engaging with change instead of avoiding and resisting it brings emotional clearing and cognitive clarity, provides a still point from which to view a world apparently spinning out of control. It’s an essential trait of “supersurvivors” — something I’ll talk about in a short series later this summer.

We’ll tend to our peace of mind if we know what’s good for us, and we usually do.

Before we go on, we need a working definition of “culture.” We’re familiar with the notion of company or firm culture. This is from Simon D’Arcy, founder of Next Level Culture:

Think of a culture code as the DNA of an organization, carrying within it a code that defines the character and proficiency of the entire organism. Instead of physical traits, tendencies and aptitudes, it influences how people behave with each other, shaping how they work together as well as the results they produce.

He’s speaking of organizational culture, which we find in individual firms. Expand that idea to the collective, over-arching culture of the profession within which all those individual firms operate, and now you’re at the level of culture we’re talking about in this series.

Culture on this level isn’t just for BigBox and BigLaw, and it’s not about firm outings and casual Fridays. It’s The X Factor — the difference between creating and sustaining the future we envision vs. waking up one day to just another unfulfilling status quo.

Starting next time, we’ll look at how culture is created from the inside out.

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.

Colorado Court of Appeals: Common Open Space Part of Subdivision’s Community Property

The Colorado Court of Appeals issued its opinion in Hauer v. McMullin on Thursday, July 2, 2015.

Real Property—Common Open Space—Unincorporated Homeowners Association—Colorado Common Interest Ownership Act—Attorney Fees.

The McMullins owned Two Rivers Estates, which included seven lots and seventeen acres of Common Open Space (COS). The McMullins sold the seven lots to three owners: the Hauers bought lots one and three; the Conrados bought lot two; and Lincoln Trust FBO John Hauer (Lincoln Trust) bought lots four through seven. Thereafter, the Hauers and Lincoln Trust filed a complaint individually and on behalf of the unincorporated Two Rivers Homeowners Association (HOA) to quiet title to their respective lots. They also sought to quiet title to the COS in the HOA. The McMullins counterclaimed, asserting that they hold title to the COS because a common interest community was never formally created and because they never conveyed the COS property. The trial court found in favor of the Hauers and Lincoln Trust.

On appeal, the McMullins contended that the trial court erred when it quieted title to the COS in the unincorporated HOA. The Evergreen Highlands’s declarations expressly established the HOA, conveyed to it the development’s common property, charged it with maintaining the common property, and granted it authority to determine annual membership or use fees. The final recorded plat, the recorded subdivision agreement, the recorded deeds, and the land sale contract with Lincoln Trust constituted declarations necessary to form a common interest community under the Colorado Common Interest Ownership Act. Therefore, the COS was part of the subdivision’s common property and was appurtenant to each lot, and with each conveyance of a lot, an appurtenant one-seventh common interest in the COS was conveyed, as well. The trial court’s findings and order were affirmed.

The McMullins and their attorney contended that the trial court abused its discretion when it awarded the Hauers their attorney fees incurred as a result of the McMullins’ failure to disclose information relevant to the subdivision development, without making a finding of prejudice. The trial court did not abuse its discretion in awarding attorney fees as sanctions under CRCP 37, because this rule and the assessment of attorney fees do not require a finding of prejudice.

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

Colorado Court of Appeals: Determination of “Good Cause” for Removal of Trustees Under Colorado Library Law Subject to Judicial Review

The Colorado Court of Appeals issued its opinion in High Plains Library District v. Kirkmeyer on Thursday, July 2, 2015.

Commissioners—Board of Trustees—Library District—Preliminary Injunction—Removal—Good Cause—Judicial Review.

Members of the Weld County Board of County Commissioners (commissioners) adopted resolutions to remove the board of trustees (board) of the High Plains Library District (district). Plaintiffs, the trustees and the district, filed a complaint and sought a preliminary injunction to prevent the removal. The district court granted a preliminary injunction (1) prohibiting the trustees’ removal and (2) limiting the trustees’ ability to enter into any new contracts, begin new projects, or adopt new policies until the resolution of this action.

On appeal, the commissioners argued that the district court erred in allowing evidence regarding the existence of good cause “in fact” under CRS § 24-90-108(5) for the removal of the trustees because the decision to remove the trustees was a ministerial or administrative act of each legislative body and is therefore not subject to judicial review. Review under CRCP 106(a)(4) is the exclusive remedy for determining whether a governmental body exercising a quasi-judicial function has abused its discretion or exceeded its jurisdiction. Therefore, the district court had the authority to review the existence of good cause for removal under CRS § 24-90-108(5).

The commissioners also argued that the district court abused its discretion in granting the preliminary injunction. Specifically, it contended that plaintiffs did not demonstrate a reasonable probability of success on the merits. Defendants did not provide evidence of any facts supporting their stated reasons for good cause in removing the board. Accordingly, the district court did not erroneously apply the law or otherwise make a decision that was manifestly arbitrary, unreasonable, or unfair when it granted plaintiffs’ motion for a preliminary injunction in this matter. The order was affirmed.

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

Tenth Circuit: Unpublished Opinions, 7/8/15

On Wednesday, July 8, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Taite v. Ramos

Brown v. McKune

Smith v. Oliver

United States v. Sanchez-Mendoza

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