August 13, 2018

Archives for December 20, 2017

The Stupidity Paradox

Every day I ride a bus that has a row of seats up front that are folded up, with a sign next to them:

NOTICE
Seats Not in Service
The bus manufacturer has determined
that these seats not be used.

I’ve seen that sign for over a year. Never really thought about it. But recently I wondered: you don’t suppose both those seats and the sign were installed in the factory? It could happen — cheaper than a recall maybe. If so, it would be right in line with this week’s topic: a kind of on-the-job behavior that professors and business consultants Mats Alvesson and André Spicer[1] call The Stupidity Paradox.

Their book by that name began when they were sharing a drink after a conference and found themselves wondering, “Why was it that organisations which employed so many smart people could foster so much stupidity?” They concluded that the cause is “functional stupidity” — a workplace mindset implicitly endorsed because it works.

“We realized something: smart organisations and the smart people who work in them often do stupid things because they work — at least in the short term. By avoiding careful thinking, people are able to simply get on with their job. Asking too many questions is likely to upset others — and to distract yourself. Not thinking frees you up to fit in and get along. Sometimes it makes sense to be stupid.”

In fact, stupidity works so well it can turn into firm culture:

Far from being “knowledge intensive,” many of our most well-known chief organisations have become engines of stupidity. We have frequently seen otherwise smart people stop thinking and start doing stupid things. They stop asking questions. They give no reasons for their decisions. They pay no heed to what their actions cause. Instead of complex thought we get flimsy jargon, aggressive assertions or expert tunnel vision. Reflection, careful analysis and independent reflection decay. Idiotic ideas and practices are accepted as quite sane. People may harbour doubts, but their suspicions are cut short. What’s more, they are rewarded for it. The upshot is a lack of thought has entered the modus operandi of most organisations of today.

I.e., it pays to be stupid on the job: you get things done, satisfy expectations, don’t stand out from the crowd, aren’t labelled a troublemaker. We learned all of that in middle school; we learn it again on the job.

We learn from management:

A central, but often unacknowledged, aspect of making a corporate culture work is what we call stupidity management. Here managers actively encourage employees not to think too much. If they do happen to think, it is best not to voice what emerges. Employees are encouraged to stick within clearcut parameters. Managers use subtle and not so subtle means to prod them not to ask too many tough questions, not to reflect too deeply on their assumptions, and not to consider the broader purpose of their work. Employees are nudged to just get on with the task. They are to think on the bright side, stay upbeat and push doubts and negative thoughts aside.

And then we school ourselves:

Self-stupifying starts to happen when we censor our own internal conversations. As we go through our working day, we constantly try to give some sense to our often chaotic experiences. We do this by engaging in what some scholars call “internal reflexivity.” This is the constant stream of discussion that we have with ourselves. When self-stupidification takes over, we stop asking ourselves questions. Negative or contradictory lines of thinking are avoided. As a result, we start to feel aligned with the thoughtlessness we find around us. It is hard to be someone who thinks in an organization that shuns it.

Back to the seats on my bus… A “manufacturer” is a fiction, like “corporation” is a fiction: both act through humans. Which means that somewhere there’s an employee at a bus manufacturer whose job is to build those seats. Someone else installs them. Someone else puts up the sign. And lots of other people design, requisition, select, negotiate, buy, ship, pack and unpack, file, approve, invoice, pay bills, keep ledgers, maintain software, write memos, confer with legal, hold meetings, and make decisions. All so that the “manufacturer” — i.e., the sum total of all those people doing their jobs — can tell me not to sit there.

Functional stupidity is as common as traffic on your commute. We’ll look more into it next time.


[1] Mats Alvesson is Professor of Business Administration at the University of Lund, Sweden, University of Queensland, and Cass Business School, City University of London. André Spicer is Professor of Organisational Behaviour at Cass Business School, City University of London.

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Colorado Court of Appeals: Mother Had No Administrative Right to be Present at Child’s Placement Meeting

The Colorado Court of Appeals issued its opinion in People in Interest of C.J. on Thursday, December 14, 2017.

JuvenileDependency and NeglectKinship PlacementDue Process.

The Department of Human Services (Department) filed a petition in dependency and neglect after the child was born addicted to methadone and opiates. Several months later, the Department placed the child in foster care due to mother’s continued substance abuse. About six months later, a paternal aunt contacted the Department and expressed interest in caring for the child. Following a home study to evaluate the aunt as a placement option for the child and an administrative review, the Department decided not to recommend placement with the aunt. The trial court, citing the child’s emotional needs, her bond with her foster parents, and her lack of attachment with the aunt, denied mother’s request to permanently place the child with the aunt. Thereafter, the court terminated mother’s parental rights.

On appeal, mother argued that her due process rights were violated because she was denied the opportunity to be heard on the issue of the child’s placement. She asserted that if she or her attorney had been present at the Department’s administrative review, she could have provided evidence or alternatives to refute the Department’s reasons for disapproving the aunt’s home study. Mother’s due process rights were protected by her opportunity to challenge the Department’s recommendation at both the motions and termination hearings. The record establishes that the trial court afforded mother a full opportunity to be heard and to present evidence in contravention of the Department’s placement recommendation. Mother was not entitled to participate in the Department’s administrative review and thus had no right to assistance of counsel during that administrative review.

Mother also asserted that she did not timely receive a copy of the home study and thus had no notice of the basis for the Department’s decision and could not properly challenge it. Mother knew the home study had been completed and the burden was on her to request a copy of it. Mother failed to avail herself of the procedures that existed by which she could have timely obtained the information she sought and challenged the Department’s recommendation.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: County Treasurer Must Exercise Due Diligence When Notice Returned Undelivered

The Colorado Court of Appeals issued its opinion in Wells Fargo Bank Financial Colorado, Inc. v. Olivas on Thursday, December 14, 2017.

TaxationSale of Tax LiensTax DeedNoticeDiligent Inquiry.

Buyers signed a deed of trust with Wells Fargo Financial Colorado, Inc. (WFFC) to secure a mortgage and an open-end deed of trust to Wells Fargo Financial Bank (WFFB) to secure a line of credit. Beginning in 2008, buyers failed to pay both the monthly mortgage installments to WFFC and the property taxes on their house. WFFC did not pay the taxes after September 2009, and Housman paid the 2009 taxes on October 20, 2010, when the Treasurer, Olivas, sold a tax lien on the house by public auction. Housman also paid taxes on the property for tax years 2010, 2011, and 2012. In 2013, Housman applied for a tax deed. In early January 2014, the Treasurer took steps pursuant to C.R.S. § 39-11-128 to notify all parties with an interest in the property of an impending issuance of a tax deed and a right to redeem. The notice to WFFC was returned as undeliverable as addressed. The notice to WFFB was not returned to the Treasurer. Believing that he had provided the required notice because one Wells Fargo entity had received the notice, the Treasurer issued Housman a tax deed on May 28, 2014. Housman sold the property to Moran a few weeks later, and Housman continued to hold a deed of trust on the property. In May 2015, WFFC filed a complaint for declaratory relief seeking to void the tax deed to Housman, the special warranty deed from Housman to Moran, and the deed of trust held by Housman. WFFC moved for summary judgment, and Housman and Moran cross-moved for summary judgment asserting, among other things, that WFFC’s complaint should be barred by laches. The district court granted summary judgment for defendants, concluding that Housman’s tax deed was valid.

On appeal, WFFC contended that the district court erred in granting summary judgment to defendants. A reasonably diligent treasurer should know that secured parties on different deeds of trust that secure different loan amounts, with different names and addresses, may not be so closely affiliated that notice to one may be assumed to effect notice to the other. The Treasurer failed, as a matter of law, to perform his statutory duty to exercise reasonable diligence in seeking an alternative address for WFFC. When notice is defective because it was given without the diligent inquiry required by law, the tax deed is voidable.

The judgment was reversed and the case was remanded for further proceedings on the affirmative defense of laches. If the court concludes that laches does not bar WFFC’s claims, it shall address the request for declaratory relief. If recovery of the land conveyed by the tax deed is effected by this suit, the court shall consider whether C.R.S. § 39-12-101 applies.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/20/2017

On Wednesday, December 20, 2017, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.

Consolidation Coal Co. v. Director, Office of Workers’ Compensation Programs

United States v. Wade

Latin v. Bellio Trucking, Inc.

United States v. Chow

United States v. Davis

Azim v. Tortoise Capital Advisors, LLC

United States v. Verdin-Garcia

Montano v. Brennan

United States v. Mobarekeh

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

Use Quotations to Make a Point

Many lawyers fill briefs with quotations; too many quotations. A parade of quotations rarely helps readers. Here are some tips on when to use quotations and how to use them effectively.

Use Quotations Sparingly

Many briefs quote too often.[1] If you are analyzing the words in the quotation, use it. If the quotation has unique phrasing that pops, use it. But if you can say it better in your own words, don’t quote. Most of the time you can say it better and shorter by paraphrasing.[2]

Before

After

“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), quoting F.R.C.P. 8(a)(2). Complaints must contain a short and plain statement explaining why a claim succeeds. F.R.C.P. 8(a)(2).
“As the Court held in Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although complaints do not require detailed factual allegations, they require more than bare accusations of harm. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Complaints must state more than labels, conclusions, or a claim’s elements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Weave Quotations Into Your Argument

Here are some stereotypical introductions to quotations:

  • As the Supreme Court held in Smith v. Jones, “. . .
  • According to Smith v. Jones, “. . .
  • The statute reads: “ . . .
  • As one case held, “ . . .

Cut these. They add nothing except words. After you cut them, the meaning of the sentence is unchanged.

Then do even more. Legal writing specialist Ross Guberman provides several ways to enhance your argument with quotations. Rather than letting a quotation stand alone, each method ties the quotes to your case.[3]

Method 1: Introduce Quotations By Explaining How They Support Your Argument[4]

Introduce a quote by telling readers what you want them to take away from it.

Regardless of the policy’s merits, courts defer to codified legislative policies: “It is not for the courts to enunciate the public policy of the state if, as here, the General Assembly has spoken on the issue.” Grossman v. Columbine Med. Group, 12 P.3d 269, 271 (Colo. App. 1999).

  • During trial the victim emphasized repeatedly his confidence in the defendant’s identity: [quotes with record citations]

Method 2: Link a Party in Your Case With a Party in the Quotation[5]

Often briefs summarize a case and then compare the cited case to the case at issue. Combine these steps.

  • Where, as here, the interpreter did not testify, the agents present did not speak Spanish, and no one could testify whether the “interpreter indeed read the Defendant each of his Miranda rights off of the card” or “what the Defendant said in response to each of these warnings,” then the government has failed to meet its burden and
    the court must suppress the post-arrest statements. United States v. Sanchez-Manzanarez, 2012 WL 315870, *8 (S.D.N.Y. Feb. 2, 2012).

The prosecutor’s use of the term “lie” in closing argument is the exact conduct prohibited in Wend, where after reviewing the repeated use of “lie” in opening and closing arguments the Supreme Court held “a prosecutor acts improperly when using any form of the word ‘lie’ in reference to a witness’s or defendant’s
veracity.” Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

Method 3: Link Your Case’s Facts with a Quoted Legal Standard[6]

You can use quotations to merge a statement of law with the facts of your case.

  • The late disclosure of Brady material shortly before closing arguments “meaningfully alter[ed]” the defendant’s strategy on critical issues like “how to apportion time and resources to various theories when investigating the case, [and] whether the defendant should testify,” which is precisely why “the belated disclosure of impeachment or exculpatory information favorable to the accused violates due process.” United States v. Burke, 571 F.3d 1048 (10th Cir. 2009).
  • Plaintiff’s claim that the defendant gave him a dirty look falls well short of the “high standard” for intentional infliction of emotional distress by outrageous conduct, because the conduct is not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Coors Brewing
    Co. v. Floyd
    , 978 P.2d 663, 665-66 (Colo. 1999).

 


[1] “A remarkably large number of lawyers seem to believe that their briefs are improved if each thought is expressed in the words of a governing case. The contrary is true.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 127-28 (2008). See also Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 140-47 (2015) (discussing use of quotations in opinions).

[2] “After you have established your major premise, it will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your
own words than in the stringing together of quotations from various cases. Such a cut-and-paste approach also produces an air of artificiality, even of lack of self-assurance. You want the court to develop confidence in your reasoning—not in your ability to gopher up supporting quotations” Scalia & Garner, supra n. 1 at 128. “Whether you’re a judge, advocate, or journalist, stringing together quotations is not ‘writing.’ A surgical strike with lean quoted language will often beat bulky block quotation bursting all over the page. And yet sometimes, when binding precedent is worded just right, even an economical judge will want to preserve the language in the original court’s own words.” Ross Guberman, Point Taken, supra n. 1 at 140.

[3] See also Bryan A. Garner, Legal Writing In Plain English 101-04 (2d ed. 2013) (discussing how to weave quotes into a narrative); Ross Guberman, Point Taken, supra n. 1 at 121-126 (discussing how opinions draw analogies to cited authority).

[4] Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 175-79 (2d ed. 2014) (applying strategy to block quotations); Ross Guberman, Point Taken, supra n. 1 at 140-41 (“For starters, don’t just dump the quote and run. Introduce a long quote the way you would introduce a stranger to a friend—by telling the friend about what they have in common, and why this new person might be interesting to get to know.”).

[5] See Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 131-32 (2d ed. 2014).

[6] See id. at 133-34 (2d ed. 2014).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Colorado Supreme Court: Special Circumstances Are Required to Disqualify District Attorney’s Office

The Colorado Supreme Court issued its opinion in People v. Epps on Monday, December 18, 2017.

Disqualification—Request for Disqualification—Special Circumstances.

In this interlocutory appeal, the Colorado Supreme Court reviewed the district court’s order disqualifying the District Attorney’s Office for the Fifth Judicial District from re-prosecuting defendant’s case after a mistrial. The district court issued its order after defendant had endorsed the deputy district attorney prosecuting the case as a witness for the retrial. Defendant proposed calling the deputy district attorney to testify regarding a courtroom altercation between defendant and the alleged victim’s husband after the district court declared the mistrial.

The court reversed the district court’s order. In disqualifying the District Attorney’s Office, the district court relied on its erroneous understanding that the People had not objected to the disqualification. Moreover, the court concluded that the deputy district attorney’s proffered testimony would not be of sufficient consequence to deny defendant a fair trial. Accordingly, this case lacks the special circumstances required by C.R.S. § 20-1-107(2) to justify the district attorney’s disqualification, and therefore the district court abused its discretion in entering the disqualification order.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Sovereign Immunity Does Not Bar Attorney Fee Award Against Government Entity

The Colorado Supreme Court issued its opinion in C.K. v. People in Interest of L.K. on Monday, December 18, 2017.

Discovery Sanctions—Attorney Fees—Sovereign Immunity.

In this case, the Colorado Supreme Court considered the narrow question of whether sovereign immunity bars an award of attorney fees against a public entity. The court concluded that sovereign immunity does not bar an award of attorney fees against a public entity because sovereign immunity does not presumptively protect the state of Colorado and Colorado’s Governmental Immunity Act does not provide immunity for an award of attorney fees against a public entity. Accordingly, the court reversed the court of appeals’ judgment and remanded to that court for proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Minimum Sentence for Indeterminate Range Should Be Three Times the Presumptive Maximum

The Colorado Supreme Court issued its opinion in Isom v. People on Monday, December 18, 2017.

Sentencing—Statutory Interpretation.

In this case, the Colorado Supreme Court considered the minimum end of a habitual sex offender’s indeterminate sentence pursuant to C.R.S. § 18-3-1004(1)(c). The court held that the enhanced minimum end in a habitual sex offender’s sentence is set to three times the presumptive maximum unless the court makes a finding of extraordinary aggravating circumstances pursuant to C.R.S. § 18-3-401(6), in which case the enhanced minimum end of the offender’s indeterminate sentence may be set anywhere between triple and sextuple the presumptive maximum otherwise prescribed for the offense.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/19/2017

On Tuesday, December 19, 2017, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Mathison v. Wilson

United States v. Gonzalez-Arenas

United States v. Mobley

United States v. Cravens

United States v. Tolentino

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