July 21, 2019

Archives for October 22, 2015

The Culture of Law (Part 11): Time is Money

rhodesWe’ve been talking about money, now let’s talk about time — a natural segue for a profession that logs value in 6 minute increments.

Working long hours is a law cultural norm, and never mind that it’s no secret any more that working too much is counterproductive. This Time article featured popular author, TED talker, and professor Brené Brown:

[Ms. Brown] talks about how people use the idea of being “crazy busy” as a sort of armor—a justification for not bothering to pause, evaluate what’s going on in your life, and reconsider decisions regarding lifestyle, work, family, and perhaps whether it’s really necessary to be “crazy busy.”

Also, she reveals that, for the most part, highly successful people understand that perfectionism is not healthy and ultimately gets in the way of progress.

Also never mind that overworked unhappiness abounds on both ends of the legal profession’s financial food chain. In this New Yorker op-ed piece a few weeks back, Columbia Law professor Tim Wu fingered the tyranny of technology as the culprit, citing the long hours of litigation as an example.

Consider the litigation system, in which the hours worked by lawyers at large law firms are a common complaint. If dispute resolution is the social function of the law, what we have is far from the most efficient way to reach fair or reasonable resolutions. Instead, modern litigation can be understood as a massive, socially unnecessary arms race.

In older times, the limits of technology and a kind of professionalism created a natural limit to such arms races, but today neither side can stand down, lest it put itself at a competitive disadvantage.

A typical analysis blames greedy partners for crazy hours, but the irony is that the people at the top are often as unhappy and overworked as those at the bottom: it is a system that serves almost no one. Moreover, our many improvements in the technologies of productivity make the arms-race problem worse. The fact that employees are now always reachable eliminates what was once a natural barrier of sorts, the idea that work was something that happened during office hours or at the physical office. With no limits, work becomes like a football game where the whistle is never blown.

We may not like what we’re doing — see, e.g., this Above the Law blog post re: Prof. Wu’s article — but we do it anyway. Why?

Barry Goldman, arbitrator, mediator, and author of The Science of Settlement: Ideas for Negotiators, cites a psychological trait cognitive scientists call “sphexishness” to explain our stubbornness. You can read about it in this LA Times op-ed piece.

Sphexishness? Maybe. Or maybe workplace unhappiness and a show me the money mentality are embedded in the larger context of American workplace culture. The following is from a Pyschology Today article called “Counterproductive Productivity,” by marketing professor Raj Raghuna:

I don’t know about you, but it seems that the average American doesn’t really enjoy work. If the reason we work harder is because we enjoy our work, then most of us would be happy to go back to work, and we would have restaurants that are called TGIM (Thank Goodness It’s Monday) and not TGIF (Thank Goodness It’s Friday).

No, we don’t work harder because we enjoy our work. Rather, we work harder so that we can earn more money, and so that we can feel, at some level, more important and more successful. . . . And once we get on that gravy train, it’s difficult to get off it.

Whatever the cause, we seem to have a problem here, Houston, and next time we’ll look at yet another reason why we avoid addressing it.

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.

Tenth Circuit: Innocent Explanations Need Not Dissipate Officer’s Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in United States v. Padilla-Esparza on Friday, August 14, 2015.

Daniel Enrique Padilla-Esparza is a citizen of Mexico and a lawful permanent resident of the United States. On February 25, 2013, he was entering the United States from Mexico when a drug-sniffing dog alerted to his truck. Officers searched his truck and found an empty non-factory compartment above the gas tank. The officers released Padilla-Esparza but entered an alert on their communications system regarding Padilla-Esparza and his truck. On September 7, 2013, agents stopped Padilla-Esparza as he was traveling through a border checkpoint on his way to Mexico. CBP Officer Aguilera and his partner interviewed Padilla-Esparza. Their suspicions were raised because Padilla-Esparza had money hidden in a camera case that he had not originally declared, he could not name the last three clients of his landscaping business, he had been through border checkpoints every month for the past six months, and he had receipts for $1,300 in recent clothing purchases. Because of these inconsistencies, Officer Aguilera created a second alert for Padilla-Esparza and updated his license plate information. Officer Aguilera also set up an alert to be sent to his cell phone when Padilla-Esparza returned to the United States.

On September 10, 2013, Officer Aguilera received an alert that Padilla-Esparza had re-entered the United States. He issued a “be on the lookout” alert (BOLO) for Padilla-Esparza and his truck. Three days later, Padilla-Esparza entered the Las Cruces Border Patrol checkpoint, but an officer waved him through the checkpoint due to heavy rain. Another officer monitoring license plates recognized Padilla-Esparza’s and stopped traffic, but soon realized that Padilla-Esparza had already been waved through. Border Patrol agents with a drug-sniffing dog pursued Padilla-Esparza and pulled him over about 15 miles from the border. However, one of the agents mistakenly believed they had the wrong truck and let Padilla-Esparza go. When the agents realized their error, they again pursued Padilla-Esparza and pulled him over again. A drug-sniffing dog alerted to Padilla-Esparza’s truck. Due to the heavy rain, the agents asked him to return to the border patrol checkpoint, and he agreed. At the checkpoint, the agents found 16 kilograms of cocaine in the hidden non-factory compartment.

Padilla-Esparza was indicted on one count of possession with intent to distribute 5 kilograms or more of cocaine. He moved to suppress the evidence seized from his truck. After an evidentiary hearing, the district court denied his motion. He eventually pleaded guilty but reserved the right to appeal the district court’s denial of his motion to suppress. He was sentenced to 78 months in prison followed by two years of supervised release. He appealed.

On appeal, Padilla-Esparza argued the evidence seized from his vehicle should be suppressed because (1) the first stop was unlawful because Officer Aguilera lacked reasonable suspicion to issue the BOLO alert, and (2) the second stop was unlawful because any reasonable suspicion was dissipated after he was released from the first stop. The Tenth Circuit rejected both arguments. Although Padilla-Esparza argued there were innocent reasons for all the reasons Officer Aguilera found suspicious, the Tenth Circuit found that the mere possibility of innocence does not negate reasonable suspicion. As to Padilla-Esparza’s argument that the second stop was unlawful, the Tenth Circuit again disagreed, noting that the officers’ suspicions were not dissipated after the first stop. Rather, they erroneously released the vehicle based on a mistaken belief that it was not the correct vehicle. They did not investigate Padilla-Esparza at all at the first stop, so there was no basis on which their suspicions could have dissipated.

The district court’s order allowing introduction of the evidence from Padilla-Esparza’s vehicle was affirmed.

Tenth Circuit: No Avoidance of Transaction Made Within Ordinary Course of Business

The Tenth Circuit Court of Appeals issued its opinion in In re C.W. Mining Co.: Jubber v. SMC Electrical Products, Inc. on Monday, August 10, 2015.

C.W. Mining was forced into bankruptcy after creditors filed a petition for involuntary bankruptcy on January 8, 2008. In June 2007, C.W. had entered into an agreement with SMC Electrical Products, Inc., to purchase equipment in order to switch from a continuous method of mining to a longwall method. On September 18, 2007, SMC submitted an invoice to C.W. for $808,539.75, due in 30 days. C.W. made a $200,000 payment on the invoice on October 16, 2007, two days before it was due. The bankruptcy trustee initiated an adversary proceeding to avoid the transfer under 11 U.S.C. § 547(b). The bankruptcy court granted SMC summary judgment and rejected the trustee’s claim on the grounds that the transfer was made in the ordinary course of business. The BAP affirmed, and the trustee appealed to the Tenth Circuit.

The Tenth Circuit analyzed avoidance and the ordinary course of business exception, including the scrutiny applied to first-time transactions. The Tenth Circuit explained the purpose of the ordinary course of business transaction in detail, and examined its application as to both parties in the business transaction. Applying its analysis to the circumstances of this case, the Tenth Circuit found that the transaction between C.W. and SMC was within the ordinary course of business. The purchase was an arms’ length transaction for the purpose of assisting in mining operations. The Tenth Circuit dismissed the trustee’s arguments, characterizing them as an argument against a first-time transaction and finding that was not enough to avoid the transfer.

The bankruptcy court’s ruling was affirmed.