May 25, 2019

Archives for November 19, 2015

CJD 15-01, CJD 11-02 and CJD 85-27 Repealed by Colorado Supreme Court

On Wednesday, November 18, 2015, the Colorado State Judicial Branch announced the repeal of two Chief Justice Directives: CJD 11-02, authorizing the Colorado Civil Access Pilot Project, and CJD 85-27, concerning indigency determinations for drug and alcohol treatment. Earlier in November, the Colorado Supreme Court repealed CJD 15-01 regarding public records. CJD 11-02 was repealed because the pilot project has ended and the Colorado Rules of Civil Procedure were amended to incorporate provisions of the pilot project. CJD 15-01 was repealed because the Supreme Court issued new rules regarding public access to records of the judicial branch.

For a complete list of the Colorado Supreme Court’s Chief Justice Directives, click here.

Tenth Circuit: Unpublished Opinions, 11/19/2015

On Thursday, November 19, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Williams v. Warrior

Fymbo v. City & County of Denver

Case summaries are not provided for unpublished opinions.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

The Culture of Law (Part 15): An Antidote for a Left-Brain Dominated World

rhodesThe last of Iain McGilchrist’s predictions:

We would expect there to be a resentment of, and a deliberate undercutting of the sense of awe and wonder.

It would become hard to discern value or meaning in life at all; a sense of novelty and boredom before life would be likely to lead to a craving for novelty and stimulation.

There would be a … downgrading of non-verbal, non-explicit communication. Concomitant with this would be a rise in explicitness, backed up by ever increasing legislation.…

Visual art would lack a sense of depth, and distorted or bizarre perspectives would become the norm.

Music would be reduced to little more than rhythm.

Technical language, or the language of bureaucratic systems, devoid of any richness of meaning, and suggesting a mechanistic world, would increasingly be applied across the board, and might even seem unremarkable when applied to descriptions of the human world, and human beings, even the human mind itself.

And then, after all this, McGilchrist makes one last, entirely understated observation:

This is what the world would look like [under left-brained dominance]. It’s hard to resist the conclusion that [this outcome] is within sight.

Lawyer brains are trained to argue both sides of an issue, and to be dispassionate about it. We can regard McGilchrist’s analysis and predictions that way, but I have to say that, now that I know about brain-based culture as I’ve been describing it in this Culture of Law series, I personally find them chilling — mostly because I wrote a whole blog series on the Future of Law earlier this year which revealed them already playing out at a runaway pace.

McGilchrist published his predictions eight years ago, but spent twenty years researching them before he did so. I hadn’t read them before I wrote the Future of Law series. Now that I have, I see them reflected over and over in that series, in concepts such as the commoditization of the law, the new legal experts, law by algorithm, the focus on task- and systems-oriented expertise. the unmanageable (except by technology) proliferation of law “data,” the predominance of technology as a change agent, the acceptance of technical language as normative, the proliferation of bureaucracy and its endless rules and regulations… and so on and so on.

It seems lawyers, the legal profession, and most importantly the law itself stand to lose a significant “richness of meaning” if these trends are not accompanied with thoughtful reflection on what professionalism means in today’s New Economy. (I wanted to include a link to that term here, but I Googled “new economy” and ended up frozen by the extent of the results; none rose above the others as fully representative. I therefore invite you to make your own search.)

The future is not a given. The best way to predict it is still to create it. And the best way to create it is to deliberately, consciously create a newly responsive and sustainable law culture based on thoughtful, whole-brained, human guidance.

Creating the future of law by recreating its culture will require a daring new kind of leadership that will appear at first to be subversive in nature. It has to be that way, because in the absence of subversion, the brain (where culture originates) simply will not depart from its default evolutionary path or risk undermining the cultural vision it already holds as status quo.

We’ll look more at subversive change next time.

Kevin Rhodes’s new book is Running For My Life: When Impossible is the Only Option. This is from the publisher: “Running For My Life is for life athletes: people who live with fire and focus. Athletes, entrepreneurs, executives, artists… whatever our sphere, we take life’s extreme challenges head on. We need a strong inner game to do that. This book guides us to the core source of our greatest power: personal ethos, that inner life that makes us uniquely who we are and defines what we will do, impossible or not.” Click here or on the book cover for further information.

Tenth Circuit: User Manual Adequately Described Risk of Injury so Manufacturer Not Negligent

The Tenth Circuit Court of Appeals issued its opinion in Kirkbride v. Terex USA, LLC on Tuesday, August 25, 2015.

Larry Kirkbride was injured when a jammed piece of metal flew out of a rock crushing plant. Kirkbride brought claims against the plant’s manufacturer, Terex, for negligent manufacturing and design, negligence in providing inadequate warnings and instructions, strict products liability for failure to warn and manufacturing and design defects, and breach of express and implied warranty. Terex removed the case to the U.S. District Court for the District of Utah based on diversity jurisdiction. Before trial, Kirkbride narrowed his claims to negligence, strict products liability, breach of express warranty, and breach of the implied warranty of merchantability. Terex unsuccessfully moved for judgment as a matter of law when Kirkbride rested his case at trial. At the close of evidence, Kirkbride withdrew his express warranty and negligence claims, and the verdict form asked whether (1) Terex failed to adequately warn users of the risk of injury from the jaw crushers, (2) Terex manufactured a part that was used on the machine that day, the part was defective, and the defect was a cause of Kirkbride’s injury, and (3) Terex breached an implied warranty of merchantability because the defective part caused Kirkbride’s injury. The jury found for Kirkbride on all three claims and awarded him over $3.5 million in damages. Terex appealed.

The Tenth Circuit addressed Terex’s claim that the evidence was insufficient to support the jury’s findings and the trial court erred in denying its motion for judgment as a matter of law. The Tenth Circuit agreed. It first reviewed Terex’s challenge to the jury’s finding that it failed to warn of the dangers of removing jams from the jaw crushers. The rock crushing plant’s user manual warned of the exact injury suffered by Kirkbride, namely that stored energy could cause a jammed piece of non-crushable material to shoot out and hit the head of the person trying to remove it. When asked if he had read the manual, Kirkbride said “Why would you read a manual?” Additionally, other workers present at the time of Kirkbride’s injury testified that they had not read the manual, they were not trained on how to properly remove jammed material, and no one told Kirkbride to be very cautious when removing the jammed material. The Tenth Circuit found this evidence insufficient to support the jury’s finding of failure to warn and reversed.

Next, the Tenth Circuit addressed Terex’s argument that Kirkbride had not proven that the defective part caused his injuries. The defective part was a toggle plate that was designed to break when the jaw crushers got jammed, releasing stored energy and preventing other, more expensive parts from breaking. Kirkbride alleged that because the toggle plate was thicker than recommended in Terex’s manuals, it required more force to break, and therefore was defective. Kirkbride’s expert testified that a thicker plate would require more force to break, but did not address whether the recommended plate would have broken in the situation in which Kirkbride was injured. Because there was no evidence that a thinner plate would have broken, there was no support for the theory that Terex’s plate was defective or caused Kirkbride’s injury.

Finally, the Tenth Circuit addressed Kirkbride’s implied warranty claim and found it was largely subsumed by the products liability claim. Because the Tenth Circuit found the evidence insufficient to support Kirkbride’s strict products liability claim, his implied warranty claim also failed.

The Tenth Circuit reversed and remanded.

Colorado Court of Appeals: Announcement Sheet, 11/19/2015

On Thursday, November 19, 2015, the Colorado Court of Appeals issued seven published opinions and 31 unpublished opinions.

People v. Bondsteel

People v. Guzman-Rincon

Rogers v. Forest City Stapleton, Inc.

People v. Rice

Rogers v. Forest City Stapleton, Inc.

Dickinson v. G4S Secure Solutions (USA), Inc.

Dickinson v. Lincoln Building Corp.

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.