August 23, 2019

Archives for July 30, 2015

The Culture of Law (Part 4): Changing Our Default Cultural Setting

rhodes“We cannot solve problems by using the same kind of thinking we used when we created them.”
Einstein

Let’s start this week by revisiting the premise of this series:

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… if we choose to do so.

Key words: If we choose to do so. We might not. Let’s look at what’s going on in our heads one way or the other.

As we saw last time, our brains are patterned with our cultural expectations through the creation of new brain cells (neurons) and new brain wiring (neural pathways).

When we resist cultural change, judge new developments as “bad,” insist the old ways were better, we think we’re making a reasoned assessment of the pros and cons of old vs. new, and we’re convinced our assessment is correct. Maybe so, but the neurobiological reality is that our brains are encountering a new cultural model that won’t run on their existing neurons and neural pathways. Turns out we’re not saving the citadel from the invading hordes, we’re experiencing a brain reality: hormones secreting and electrical charges firing within our skulls.

Kinda puts the kibosh on the righteousness indignation, doesn’t it?

When we promote cultural change, our brains need to generate new neurons (a process called neurogenesis) and lay down new neural pathways (a process called neuroplasticity). Once in place, this new neurological infrastructure will support the change we want.

Until our brains are rewired to the point where they can find and maintain the internal-external brain concordance Dr. Wexler talked about (see last time), we will continuously revert to our old cultural patterning. This is why we can leave a firm to set up a solo or small firm practice, or launch ourselves on a mission to reform law education. or whatever our focus of change might be, only to wake up one day to find ourselves back in the same culture where we started. We revert and self-sabotage because our brains weren’t rewired to support the change we wanted.

We begin the process of deliberate change with an awareness of what our default cultural setting already is, as patterned into us during law school and our early practice years. I previously quoted Simon D’Arcy of Next Level Culture. Here he is again:

You cannot change what you cannot accept. Creating a thriving team and workplace culture starts with revealing, acknowledging and embracing your default culture.

To know where we’re going, we first need to know where we are, which means the cultural beliefs and behaviors, assumptions and expectations currently patterned in our brains. Finding out is an essential exercises in honesty, and honesty requires reflection.

We think we don’t have time for reflection. We want results.

We’ll get results if we take time for reflection.

New culture means new thoughts and behaviors. We won’t have either if our brains haven’t been rewired to accommodate them. We won’t get anywhere unless we first understand where we are now. And we won’t gain that understanding unless we step back and reflect about it.

That is the inside-out game of cultural change.

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 Rio Grande County Court Vacancy

On Wednesday, July 29, 2015, the Colorado State Judicial Branch announced the selection of two finalists to fill a vacancy on the Rio Grande County Court. The vacancy was created by the appointment of Hon. Patrick H. Hayes, Jr., to the Twelfth Judicial District Court, effective July 1, 2015.

The two nominees are Mérida I. Zerbi and Barbara A. Zollars, both of Monte Vista. Mérida I. Zerbi is a solo practitioner in Monte Vista, where she practices in the areas of criminal law, domestic relations, immigration, probate, and water law. Barbara A. Zollars of the San Luis Valley Law Firm is a former public defender who currently practices criminal defense.

Under the Colorado Constitution, the governor has fifteen days in which to appoint one of the nominees to the bench. Comments regarding the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

Colorado Court of Appeals: Announcement Sheet, 7/30/2015

On Thursday, July 30, 2015, the Colorado Court of Appeals issued six published opinions and 28 unpublished opinions.

People v. DeGreat

People v. Froehler

In the Interest of Neher v. Neher

Zeke Coffee, Inc. v. Pappas-Alstad Partnership

Todd v. Hause

People in Interest of C.G.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Complete Prohibition on Internet Access Constitutes Greater Deprivation of Liberty than Reasonably Necessary

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ullmann on Tuesday, June 9, 2015.

Ronald Ullmann pleaded guilty to making a false statement, arising from a sexually explicit online conversation he had with an undercover FBI agent posing as a 13-year-old. He served a 60-month prison term and began his three years of supervised release. Ullmann contended that the district court’s imposition of a special condition restricting his use of the internet and a panoply of electronic devices impose a greater deprivation of liberty than is reasonably necessary.

The Tenth Circuit noted that its prior precedent suggested that a complete prohibition on internet access would constitute a greater deprivation of liberty than reasonably necessary, and in the decade since the two precedential cases were decided the internet has become an even more indispensable tool of everyday life. The Tenth Circuit found the probation office’s restriction as written to be unreasonable, but because in this case the district court orally modified the condition to be not a blanket prohibition but rather a restriction, there was no error. The Tenth Circuit cautioned the probation office that adjudicating further appeals based on the prohibitive language would not be a valuable use of its judicial resources.

Ullmann also argued the modified condition is inconsistent with the Sentencing Guidelines, but the Tenth Circuit disagreed because the condition restricts rather than prohibits Ullmann’s internet use. Ullmann further contended the modified condition unconstitutionally delegated authority to perform a judicial function to the probation office. The Tenth Circuit disagreed, finding a district court’s oral delegation to a probation officer controls over the written conditions of probation imposed by the probation office. The district court exercised its authority at the sentencing hearing when it clarified that Ullmann would only have to comply with the written restrictions related to internet-capable devices.

The Tenth Circuit affirmed the district court’s judgment.

Tenth Circuit: Unpublished Opinions, 7/29/2015

On Wednesday, July 29, 2015, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Le

Tlalpan-Ochoa v. Lynch

United States v. Little

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