July 18, 2019

Archives for October 15, 2015

The Culture of Law (Part 10): Don’t Show Me The Money

rhodesIt’s not the legal profession’s fault that you can make good money at it. The problem is when we use that as an excuse for personal powerlessness.

Personal powerlessness is when we buy into Sit Down You’re Rockin’ the Boat as a cultural and personal norm that can’t be challenged. We think that way because our brains are running on established cultural neural pathways. There are other options out there, but pursuing them will cost our brains their cherished peace of mind.

We don’t need a research survey to tell us there are other ways to measure value than money, but consider this one anyway:

Money and prestige aren’t key to career satisfaction, according to findings from a multiyear survey of University of Michigan law grads. Instead, work satisfaction is more closely related to the law grads’ perceptions of the social value of their work and the quality of their relations with co-workers and superiors,

If you’re willing to try something other than money and prestige, how about…

A Utah lawyer starts a flourishing non-profit law firm, where clients pay based on income.

Or this New York Times story about lawyers who have chosen less remunerative law careers:

Of the many rewards associated with becoming a lawyer — wealth, status, stimulating work — day-to-day happiness has never been high on the list. Perhaps, a new study suggests, that is because lawyers and law students are focusing on the wrong rewards.

Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being.

However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy.

Lawyers in public service jobs also drank less alcohol than their higher-income peers. And, despite the large gap in affluence, the two groups reported about equal overall satisfaction with their lives.

Some lawyers went straight to these alternatives out of law school, others got there by exiting private practice. That path isn’t for everybody, but if you’re looking for a different option than show me the money, why not? While you’re thinking about it, consider this BigLaw partner’s case against being too enamored with the prospect of making money in the law:

Becoming a lawyer is a great way to improve your standard of living if you come from a family of poors who thinks rich people “worked for every penny they had.” But if you are a lawyer, your income is pretty much restricted to how many hours you can work in a day. That’s no way to live.

(“A family of poors”? Hmmm. Never heard that one before.)

Lawyers who opt for greater satisfaction for less pay are bucking a cultural norm that measures value in terms of money, which is in turn a function of hours worked — another cultural value standard. They’ve probably had their epiphanies and are on the Jerry Maguire path, and yes, as we saw last time, they will suffer for it.

And so will those close to them, as we’ll see next time.

Kevin Rhodes has been a lawyer for 30 years. He’s on a mission to help lawyers (and anybody else) to live large in their work in or out of law practice. He also believes law culture is ripe for change. He lives in Denver.

Colorado Court of Appeals: Father’s Prevailing at Dependency and Neglect Hearing Deprives Juvenile Court of Further Jurisdiction

The Colorado Court of Appeals issued its opinion in People in Interest of S.T. on Thursday, October 8, 2015.

Dependency and Neglect—Subject Matter Jurisdiction.

The Department of Human Services (Department) became involved in this case after receiving a call from someone concerned that mother was abusing prescription pills and not properly supervising her infant, S.T. Following its investigation, the Department obtained an emergency custody order, placed S.T. with his maternal grandparents, and filed a dependency and neglect petition. The biological father was unknown, but the petition named three possible fathers. Mother admitted to the allegations, and the juvenile court adjudicated S.T. dependent and neglected.

Following a paternity test, the juvenile court identified the biological father of S.T. Father denied the allegations in the dependency and neglect petition and requested a contested adjudicatory hearing. The court dismissed the petition after a hearing but did not award custody to father, finding it was in S.T.’s best interests to remain in placement with his grandparents. Father moved for an order allocating parental responsibilities and summary judgment on that motion. He contended that he should have been awarded custody after the juvenile court dismissed the dependency and neglect petition.

The juvenile court denied the summary judgment motion but held a hearing as to allocation. It entered an allocating parental responsibilities (APR) order, granting parental responsibilities for S.T. to the grandparents.

The Court of Appeals considered whether the juvenile court lacked subject matter jurisdiction to enter the APR order and concluded that it did. CRS § 19-3-505(6) provides that when the allegations in a dependency and neglect petition are not proven, the court loses jurisdiction over the matter. Therefore, the court erred in holding a fitness hearing and entering the APR order. The APR order was vacated and the juvenile court was directed to discharge father and S.T. from any existing temporary orders entered before the adjudicatory hearing involving father and S.T.

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

Colorado Court of Appeals: District Court Erred in Denying Requested Jury Trial

The Colorado Court of Appeals issued its opinion in Roalstad v. City of Lafayette on Thursday, October 8, 2015.

Right to a Jury Trial in Municipal Court—CRS § 16-10-109.

Roalstad was charged with violating Lafayette Municipal Ordinance 25-85, “Vicious animals prohibited,” when her dog allegedly bit the wife of the city’s manager of finance. She entered a not guilty plea and requested a jury trial pursuant to CRS § 16-10-109. The municipal court denied her request and her subsequent request for reconsideration.

Roalstad then filed a complaint in district court for declaratory and injunctive relieve pursuant to CRCP 106(a)(4) and 65, asserting that the municipal court erred as a matter of law in denying her a jury trial request. The city moved to dismiss under CRCP 12(b)(5), arguing that the offense is not a petty offense under CRS § 16-10-109 and that she has no Sixth Amendment right to a jury trial. The district court granted the motion to dismiss, and Roalstad appealed.

CRS § 16-10-109 expressly pertains to jury trials for petty offenses. The issue before the Court of Appeals was whether the ordinance at issue was a petty offense. The vicious animal ordinance carries a possible fine of either at least $250 or at least $500, both of which fall under the definition of petty offense in CRS § 16-10-109(1). The Court of Appeals noted that the alleged offense was not a crime at common law, which are excluded from the petty offense definition.

The Court then analyzed whether the alleged offense fell under the exception for a “municipal charter, municipal ordinance, or county ordinance offense which is neither criminal nor punishable by imprisonment under any counterpart state statute.” Roalstad argued and the Court agreed that CRS § 18-9-204.5, “unlawful ownership of a dangerous dog,” is a state statutory counterpart of Lafayette Rev. Mun. Code §§ 25-85 and 25-89. The Court also found that § 25-85 and its sentencing provision were criminal in nature. It therefore explicitly rejected the city’s argument that its Code had “decriminalized” the vicious animal ordinance. Accordingly, the district court’s order granting the city’s motion to dismiss was reversed and the case was remanded with directions to enter judgment for Roalstad on her claim for declaratory relief.

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

Colorado Court of Appeals: Car Vendors Have No Duty to Inquire into Prospective Buyer’s Driving History

The Colorado Court of Appeals issued its opinion in Beasley v. Best Car Buys, LTD on Thursday, October 8, 2015.

Negligence—Summary Judgment—No Legal Duty to Inquire into a Buyer’s Driving History.

Best Car Buys, LTD (BCB) sold a car to Reynoso and Yancey. Eight days later, Reynoso, driving the new car, struck plaintiff Beasley, who was driving a motorcycle. Beasley sued BCB for negligence and negligent entrustment, claiming BCB should not have sold Reynoso the car because he did not have a driver’s license and was not a safe driver. BCB moved for summary judgment and the district court granted the motion.

On appeal, Beasley claimed that BCB negligently sold the car to Reynoso because BCB had a duty to investigate Reynoso’s driving history and declined to do so. To recover for negligent conduct of another, a plaintiff must establish that there was a duty owed by a defendant that was breached, and that the breach actually or proximately caused injury to the plaintiff. Here, the question was whether there was a duty that BCB breached. The Court of Appeals agreed with the district court that there is no legal requirement for automobile dealerships to conduct a search of a buyer’s driving history or to inquire as to the status of the buyer’s driver’s license. Because there was no duty on the part of BCB, there can be no negligence claim.

Beasley further argued that BCB negligently entrusted the car to Reynoso without requiring that he present a valid driver’s license. The Restatement (Second) of Torts, § 390, requires a finding that BCB had either actual knowledge or a reason to know that, in entrusting the car to Reynoso, there was a likelihood that he would use the car in a manner likely to cause harm. There was no evidence in the record that BCB had any actual knowledge that Reynoso would use the vehicle in a manner likely to cause harm. In addition, the Court could not conclude that BCB “had reason to know” that Reynoso would use the car in a manner likely to cause harm merely because he did not present a valid driver’s license. The judgment was affirmed.

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

Tenth Circuit: Question of Whether Letter to Abortion Provider Conveyed “True Threat” Best Decided by Jury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dillard on Tuesday, July 28, 2015.

In January 2011, Angel Dillard delivered a letter to Dr. Mila Means, a family practitioner in Wichita, Kansas, who had recently decided to start providing abortions. In her letter, Dillard warned Dr. Means that she should check under her car every day “because maybe today is the day someone places an explosive under it” and referenced Dr. Means’ friend, Dr. Tiller, who had been killed as he attended church services, warning that “if he could speak from hell” Dr. Tiller would advise her against providing abortions. Dr. Means’ office manager received the letter and immediately notified the police. A copy of the letter was also forwarded to the FBI; they interviewed Defendant but did not take any follow-up actions. Shortly after receiving the letter, a member of Dr. Means’ staff found an Associated Press article on the internet discussing how Defendant had recently befriended Dr. Tiller’s murderer and indicating that Defendant admired the killer for following his convictions and stopping abortions from happening in Wichita.

In April 2011, the government brought this civil enforcement action against Defendant, seeking fines and preliminary and permanent relief. The district court denied the government’s motion for a preliminary injunction. Defendant moved to dismiss, arguing the government lacked standing and could not show a violation of the Freedom of Access to Clinic Entrances Act of 1994 (FACE), which the district court denied. While the discovery process was ongoing, Defendant moved for summary judgment, arguing no reasonable person could have construed her letter as a true threat against Dr. Means because it did not threaten imminent violence or convey a likelihood of execution. The district court agreed and granted summary judgment. The government appealed and Defendant cross-appealed, arguing the district court should have granted her earlier motion to dismiss.

The Tenth Circuit, on de novo review, analyzed the strictures of FACE and its prior case law to determine whether the threat conveyed in Defendant’s letter was a “true threat.” The Tenth Circuit noted that it has consistently found that the fact-intensive inquiry necessary to determine whether a true threat is conveyed is properly determined by a jury. The Tenth Circuit evaluated the district court’s determination that the threat in Defendant’s letter was not a true threat because it was conditional, suggesting a bomb might be placed under Dr. Means’ car only if she did not reconsider her decision to provide abortion services. The Tenth Circuit found that a conditional threat could still qualify as a true threat. The Tenth Circuit likewise rejected the district court’s analysis that because the threat was not imminent it was not a true threat. The Tenth Circuit similarly found that a direct statement of personal intent is unnecessary to convey a true threat, noting “[a] defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of ‘someone’ committing an act of violence.” The Tenth Circuit determined that a jury could reasonably have found Defendant’s letter to convey a true threat and reversed the district court’s grant of summary judgment.

Defendant argued the Tenth Circuit could affirm on the alternate ground that the government presented no evidence that she subjectively intended to threaten Dr. Means. The Tenth Circuit was unpersuaded, noting frequently the most probative evidence is objective evidence of what actually happened rather than the subjective state of mind of the actor. The Tenth Circuit found the government presented evidence from which a jury could reasonably find Defendant intentionally mailed Dr. Means a letter containing a threat of violence.

The Tenth Circuit turned to Defendant’s cross-appeal, in which she argued the district court erred in denying her motion to dismiss because (1) the government lacked standing, (2) the First Amendment bars the action, (3) FACE violates the Commerce Clause both facially and as applied, and (4) the RFRA prevents this application of FACE. The Tenth Circuit quickly dismissed the first argument, finding the government’s standing is not derivative of the victim’s and the government has standing as long as it has reason to believe someone is, has been, or could be injured by conduct proscribed by the statute. As to the second argument, the Tenth Circuit found the district court correctly held the First Amendment’s definition of “true threat” is coterminous with FACE’s definition of “threat” so any conviction under FACE would necessarily fall outside the First Amendment’s protections. Defendant failed to raise her Commerce Clause and RFRA arguments below, so the Tenth Circuit declined to address them on appeal.

The Tenth Circuit briefly addressed the parties’ motions to seal portions of the record on appeal. These were granted in part and denied in part.

The district court’s grant of summary judgment was reversed and remanded for further proceedings. The district court’s denial of Defendant’s motion to dismiss was affirmed. The record was sealed in part with instructions. Judge Baldock wrote a thoughtful dissent; he would have affirmed the grant of summary judgment because Defendant’s “ill-advised” letter conveyed a threat that was conditional, not imminent, and impersonal.

Tenth Circuit: Unpublished Opinions, 10/14/2015

On Wednesday, October 14, 2015, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

United States v. Waweru

United States v. Baker

Parrish-Parrado v. Waddington

Rader v. Commissioner of Internal Revenue

Padilla v. Nazi

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