July 18, 2019

Archives for January 2019

The Lonely Worker

In four years, my law firm went from me and my laptop to $800,000 and climbing, and suddenly we were twelve of us in newly decked out offices complete with $100,000 in telecommunications and electronics upgrades.

Obviously we’d hit a sweet spot, and we were having fun. We laughed a lot. We ate together, visited each other’s homes. We took firm ski days and watched the Rockies at Coors Field. We had crazy non-policies like “take as much vacation as you need to come to work refreshed.” We had the coolest Christmas event ever. And we did kick-ass legal work.

But then the numbers got bigger and I got serious. An accountant said our vacation policy was unsustainable — we needed one, in a real live employee manual. I wrote one but never had the heart to show it to anyone. We sat in meetings with consultants formulating heartless strategic plans we all ignored. We had an employee retreat that was just plain weird.

The worst thing I took seriously was myself. I totally blew the lesson basketball Hall-of-Famer and Orlando Magic founder Pat William put in the title of his book Humility:  The Secret Ingredient of Success. Time and chance had favored us — I’d stumbled  into doing the right thing in the right place at the right time. Work had often been a rollicking, happy social occasion. But then I decided I must  have been responsible for it, and paved Paradise, put up a parking lot, and didn’t know what we had ‘til it was gone.

We’d been in our new offices one week. My wife and I had flown  back the day before from a cushy five-day CLE at a resort in San Diego, and I was heading out to visit our new satellite office when the phone rang. It was the associate-soon-to-be-partner  we’d put in charge. “There’s something going on you need to know about,” he said.

The date was September 11th. The second plane had just hit the second tower.

Our clients — mostly small businesses — got hammered in the mini-recession that followed. As a result, so did we. I sought advice from two Denver law firm icons. They were sympathetic — they’d done that, too — expanded too much too quickly and paid for it in a downturn. A couple other people said you have to let people go — I followed their advice and let one person go — a move I mourn to this day. That’s when I decided we’ll survive or go down, but we’re doing it together.

We limped along until January 2004, when the new leader of our major referral source called to say they were “moving in a new direction” and March 31st would be the date we were officially toast. For the next three months I wrote job recommendations, we gave people their furniture and computers, sold the rest, archived files…

When I went to the office on April 1st (April Fool’s Day), the place echoed. I’d never felt so lonely in my life. Rotten timing, victim of circumstance, happens to everyone… yeah maybe, but all I could think was I miss my friends.

We don’t usually associate loneliness with work. We ought to, says Emily Esfahani-Smith in her book The Power of Meaning: Crafting a Life That Matters. She cites findings that 20% consider loneliness a “major source of unhappiness in their lives,” that 1/3 of Americans 45 of older say they’re lonely, and that close relationships at work are a major source of meaning. Former Surgeon General Vivek Murphy agrees and then some:

There is good reason to be concerned about social connection in our current world. Loneliness is a growing health epidemic.

Today, over 40% of adults in America report feeling lonely, and research suggests that the real number may well be higher.

In the workplace, many employees — and half of CEOs — report feeling lonely in their roles. “At work, loneliness reduces task performance, limits creativity, and impairs other aspects of executive function such as reasoning and decision making. For our health and our work, it is imperative that we address the loneliness epidemic quickly.

And even working at an office doesn’t guarantee meaningful connections: People sit in an office full of coworkers, even in open-plan workspaces, but everyone is staring at a computer or attending task-oriented meetings where opportunities to connect on a human level are scarce.

Happy hours, coffee breaks, and team-building exercises are designed to build connections between colleagues, but do they really help people develop deep relationships? On average, we spend more waking hours with our coworkers than we do with our families. But do they know what we really care about? Do they understand our values? Do they share in our triumphs and pains?

These aren’t just rhetorical questions; from a biological perspective, we evolved to be social creatures. Over thousands of years, the value of social connection has become baked into our nervous system such that the absence of such a protective force creates a stress state in the body.

Work And The Loneliness Epidemic: Reducing Isolation At Work Is Good For Business,” Harvard Business Review (2017).

He offers these remedies:

  • Evaluate the current state of connections in your workplace.
  • Build understanding of high-quality relationships.
  • Make strengthening social connections a strategic priority in your organization.
  • Create opportunities to learn about your colleagues’ personal lives.

And, he might have added, you might want to rethink your stingy vacation policy.

For more, see Work Loneliness and Employee Performance, Academy of Management Proceedings (2011).

If you like Kevin Rhodes’s posts, you might enjoy his new Iconoclast.blog, which focuses on several themes that have appeared in this blog over the years, such as how belief creates culture and culture creates behavior, and why growth and change are difficult but doable. You can also follow Iconoclast.blog on Facebook.

Colorado Court of Appeals: ALJ Should Apply De Novo Review to State Personnel Board Evidentiary Hearing

The Colorado Court of Appeals issued its opinion in Stiles v. Department of Corrections on Thursday, January 24, 2019.

State Personnel Board—Disciplinary Proceedings—Standard of Review.

Stiles was selected for a random drug screening while serving as a full-time correctional officer for the Department of Corrections (DOC). The day after the test, Stiles submitted a confidential incident report to DOC admitting to marijuana use and explaining the extenuating circumstances that led to it, including a bout of insomnia and personal problems. The test results came back positive for THC, the main psychoactive chemical in marijuana. The warden issued a notice of disciplinary action terminating Stiles.

Stiles appealed his termination to the Colorado State Personnel Board (Board). An administrative law judge (ALJ) conducted a hearing and issued an initial decision finding that the warden’s decision was arbitrary, capricious, and contrary to rule or law. Specifically, the ALJ found that the warden had (1) failed to candidly and honestly consider all of the evidence he procured, particularly Stiles’s lack of prior disciplinary history and his extenuating mitigating circumstances; and (2) imposed discipline that was not within the range of reasonable alternatives by failing to consider the disciplinary alternatives set forth in the DOC regulation directed at marijuana use. The ALJ rescinded Stiles’s termination and modified his discipline. On review, the Board adopted the ALJ’s initial decision.

On appeal, the DOC contended that the ALJ employed an incorrect standard of review and improperly reweighed the evidence when he reviewed the disciplinary action. A C.R.S. § 24-50-125(4) hearing is a de novo hearing at which the ALJ makes credibility, factual, and legal findings without deference to the appointing authority. Therefore, the ALJ applied the correct standard of review.

The DOC next contended that the ALJ misapplied the arbitrary and capricious standard in modifying the warden’s decision. Here, the ALJ’s decision and the Board’s order adopting it were supported by the record, including the warden’s failure to properly weigh the mitigating evidence and the absence of any prior discipline and the imposition of the most severe form of discipline for Stiles’s misconduct.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Attempted Extreme Indifference Murder Constitutes “Grave and Serious” Crime for Proportionality Purposes

The Colorado Court of Appeals issued its opinion in People v. Terry on Thursday, January 24, 2019.

Constitutional Law—Cruel and Unusual Punishment—Criminal Procedure—Postconviction Remedies.

Terry was charged in two cases with multiple offenses arising from two separate incidents. In the first incident, Terry rammed his truck into a patrol car when officers attempted to stop him for breaking into parked vehicles. In the second incident, officers responded to a report of an intoxicated man (later identified as Terry) driving his truck around a Walmart parking lot. Terry got into his truck, slammed an officer’s hand in the door, and ran over the officer’s foot as he sped away. After a chase, Terry sped toward officers and rammed the patrol cars. A jury found him guilty of attempted extreme indifference murder, second degree assault on a peace officer, two counts of first-degree criminal trespass, third degree assault on a peace officer, two counts of criminal mischief, two counts of vehicular eluding, and four habitual criminal counts. After the court adjudicated Terry a habitual criminal in a separate trial, it sentenced him to an aggregate total of 204 years in the custody of the Department of Corrections.

Terry filed pro se for postconviction relief with a request for counsel. The district court denied three of his four claims and appointed counsel to address only the one claim on which it had not already ruled. It simultaneously ordered that a copy of the motion be served on the Office of the Public Defender (OPD) and the prosecution, and instructed the prosecutor to respond to the pro se motion and any supplemental motion within 30 days of its filing. The OPD determined it had a conflict of interest, so alternate defense counsel was appointed who filed a supplemental motion raising six claims of ineffective assistance of counsel. The district court concluded that five of the six claims did not entitle Terry to relief and ordered the prosecution to respond to the remaining claim, which Terry withdrew. The district court dismissed his five claims of ineffective assistance of counsel, without first ordering the prosecution to respond.

On appeal, Terry contended that the district court erred in denying his petition for postconviction relief because Crim. P. 35(c)(3)(V) requires, in the circumstances presented here, that the prosecution respond and the defendant be allowed an opportunity to reply to that response. Crim. P. 35(c)(3)(V) does not prevent the court from ordering the prosecution to respond to only that portion of a postconviction motion that the court considers to have arguable merit. Here, the district court’s procedure fell within the bounds of prescribed procedure; it ruled on the pro se and supplemental petitions based on the motions, record, and facts and ordered the prosecution to respond to the one claim it deemed potentially meritorious. The trial court did not err, but even if it did, any error was harmless because Terry did not show prejudice.

Terry next contended that the district court erred in denying his postconviction petition because Terry sufficiently pleaded ineffective assistance of counsel. Here, (1) trial counsel’s decisions not to pursue a not guilty by reason of insanity plea or other mental health defense were objectively reasonable; (2) trial counsel’s failure to pursue a voluntary intoxication defense was strategically sound; (3) it was not error for defense counsel to decide not to pursue lesser nonincluded offenses based on trial strategy; (4) defense counsel did not err in deciding not to file a suppression motion; and (5) defense counsel did not err in failing to request a proportionality review, because attempted extreme indifference murder constitutes a per se “grave and serious” crime for purposes of an abbreviated proportionality review. Therefore, the trial court did not err in denying the postconviction motion.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/30/2019

On Wednesday, January 30, 2019, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Hayner v. City and County of Denver

United States v. Parra

Hopkins AG Supply v. Wright

United States v. Parra

Phan v. National Jewish Health

United States v. Monaco

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

Annual Update to Colorado Model Criminal Jury Instructions Released

On Tuesday, January 29, 2019, the Colorado State Judicial Branch announced the release of the Colorado Supreme Court’s annual update to the Model Jury Instructions for Criminal Trials. The update incorporates new legislation and published case law that has been announced since the last update. The update includes revisions to the instructions concerning complicity and judicial notice.

The Model Jury Instructions for Criminal Trials are available here for download in PDF and Microsoft Word format. For questions concerning the Model Jury Instructions for Criminal Trials, email the committee.

Colorado Court of Appeals: Denver Manager of Safety May Authorize a Designee to Hire, Terminate, and Discipline Employees

The Colorado Court of Appeals issued its opinion in Roybal v. City & County of Denver on Thursday, January 24, 2019.

Municipal Law—Termination—Charter of the City and County of Denver—Designated Authority.

Roybal was a deputy sheriff with the Denver Sheriff Department (DSD). After an investigation, the Department of Safety’s Civilian Review administrator (the administrator) determined that Roybal had violated multiple rules, which warranted disciplinary action, and terminated his employment. Roybal appealed the termination to a career service hearing officer, who affirmed the termination, and then to the City and County of Denver’s Career Service Authority Board (Board), which affirmed the hearing officer’s decision. Roybal appealed to the district court, which affirmed the Board’s order.

On appeal, Roybal contended that the district court erred in affirming the Board’s decision and order. He argued that under the Charter of the City and County of Denver (Charter), the authority to discipline and terminate DSD employees rests solely with the manager or the deputy, not the administrator, and therefore his termination was void as an ultra vires act. The safety manager may authorize a designee within the department, other than the deputy manager of safety, for the purposes of hiring, disciplining, and terminating DSD employees. Therefore, the Board did not err when it concluded that (1) the Charter and the Career Service Rules (CSR) do not limit the manager’s ability to designate authority solely to the deputy, and (2) the manager was permitted to delegate disciplinary authority to the administrator.

Roybal also argued that (1) two division chiefs were required to be at his hearing, and only one was present; and (2) the sheriff failed to initiate the discipline by written recommendation to the manager. Roybal claimed that in making these procedural errors, the Board effectively created a new CSR without engaging in rulemaking and applied the rule retroactively to his case to excuse the DSD’s violations of its own policies. Roybal asserted that these errors require reversal of his termination and that the Board erred in concluding otherwise. Here, the Board’s mention of existing CSR 16-72(D) was limited to explaining its reasoning in concluding that trivial deviations from pre-disciplinary regulations do not warrant the reversal of a termination decision. Simply discussing and implementing the policy behind the rule does not implicate quasi-legislative rulemaking by the Board. The Board did not err in finding that Roybal received a fair pre-disciplinary process, and any procedural irregularities are trivial.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: If More than Six Years Have Elapsed Since Entry of Judgment, Judgment Creditor Must Revive Judgment Prior to Asserting Lien

The Colorado Court of Appeals issued its opinion in Security Credit Services, LLC v. Hulterstrom on Thursday, January 24, 2019.

Civil Procedure—Creditors and Debtors—Judgments—Judgment Liens—Revival.

In 2010, the district court entered a money judgment in favor of plaintiff. In 2017, Marshall Recovery II LLC (Marshall) filed notice with the district court that it had purchased the money judgment from plaintiff. Soon thereafter, but more than six years after entry of the judgment, Marshall moved under C.R.C.P. 54(h) to revive the judgment. The district court denied the motion.

On appeal, Marshall argued that the trial court erred in denying its request to revive the judgment. A creditor may obtain a judgment lien at any time during the 20-year life of the judgment, but if more than six years have passed since entry of the judgment, the creditor must first revive the judgment and record the transcript of the revived judgment. This is true whether or not the judgment creditor previously obtained a judgment lien. Here, not more than 20 years had passed since the judgment entered, so Marshall was entitled to revive the judgment to obtain a judgment lien.

The order denying the motion was reversed and the case was remanded to address the motion

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant Charged with Criminal Mischief Entitled to Self-Defense Jury Instruction

On Thursday, January 24, 2019, the Colorado Court of Appeals issued its opinion in People v. Coahran.

Criminal Mischief—Affirmative Defense—Self-Defense—Use of Physical Force in Defense of Person.

Coahran and her ex-boyfriend had an argument during which Coahran kicked the ex-boyfriend’s car door, causing damages. Coahran was charged with criminal mischief. She argued in a pretrial conference that she had kicked the door in self-defense. The trial court determined that self-defense wasn’t available for her mischief charge because her use of physical force was directed at physical property rather than a person. Coahran was convicted of criminal mischief and ordered to pay restitution.

On appeal, Coahran asserted that the trial court improperly instructed the jury on self-defense. When an individual uses force to defend herself from the use or imminent use of unlawful physical force, she is allowed to take those actions that are reasonably necessary to do so. Therefore, a defendant charged with criminal mischief may be entitled to a jury instruction on self-defense as an affirmative defense under C.R.S. § 18-1-704(1) where a defendant is charged with a property crime, uses force to defend herself from the use or imminent use of unlawful physical force by another, and takes only those actions that are reasonably necessary to do so, whether those actions are upon the other person directly or indirectly. Here, according to Coahran’s testimony, the ex-boyfriend grabbed her wrist when she tried to walk away. She asked the ex-boyfriend twice to let her go, and he refused. Even though they were in a public parking lot, Coahran worried that the situation would escalate, so she kicked the car door in an effort to get away. Under these circumstances, there was sufficient evidence presented to support a self-defense instruction. Because the trial court didn’t properly instruct the jury on self-defense as an affirmative defense, the prosecution didn’t bear the burden of disproving self-defense, and Coahran was deprived of her right to possible acquittal on that ground. The court’s error was not harmless beyond a reasonable doubt.

Coahran also argued that the evidence was insufficient to support the damage amount necessary to sustain her conviction. The prosecution presented a repair shop estimate and the testimony of the ex-boyfriend and a police officer on the amount of damage to the car door. This evidence was sufficient to sustain Coahran’s conviction of felony mischief, and she may be retried on this charge.

The conviction was reversed, the restitution order was vacated, and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/29/2019

On Tuesday, January 29, 2019, the Tenth Circuit Court of Appeals issued three published opinions and six unpublished opinions.

Jenkins v. Chance

United States v. Johnson

National Labor Relations Board v. Wolf Creek Nuclear Operating Corp.

Deardorff v. Commissioner, SSA

Nazario v. Allbaugh

Robinson v. Doe

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

Colorado Supreme Court: Burden to Prove Collectability of Judgment in Underlying Case Lies with Claimant

The Colorado Supreme Court issued its opinion in LeHouiller v. Gallegos on Monday, January 28, 2019.

Attorney Malpractice—Burden of Proof—Tort.

In this attorney malpractice case founded on professional negligence, the supreme court was asked to decide who—the client or the attorney—bears the burden to prove that any judgment that could have been obtained against the underlying defendant would or would not have been collectible. The court held that because the collectibility of the underlying judgment is essential to the causation and damages elements of a client’s negligence claim against an attorney, the client-plaintiff bears the burden of proving that the lost judgment in the underlying case was collectible.

Here, the record shows that client-plaintiff failed to prove that the underlying judgment would have been collectible. However, given the absence of a clear statement from this court regarding client-plaintiff’s burden to prove collectibility at the time of trial, and given that the issue was not raised in this case until after client-plaintiff had presented her case-in-chief, the court reversed the court of appeals’ judgment and remanded the case for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Detective’s Testimony About Odor of Metabolized Alcohol Improperly Admitted as Lay Testimony

The Colorado Supreme Court issued its opinion in People v. Kubuugu on Monday, January 28, 2019.

Witness Qualification—Expert Testimony— Harmless Error.

This case, which involves charges of driving under the influence and child abuse, required the court to determine whether the trial court erred by admitting expert testimony under the guise of lay testimony and whether such error was harmless. Here, the trial court allowed a police officer to testify at trial, without being qualified as an expert, about the ability to detect the smell of metabolized alcohol and that he could, based on that odor, opine about the volume of alcohol ingested and the timing of when it was consumed. The officer testified that this ability was learned through specialized training and years of experience as a police officer.

The court held that the police officer’s testimony about the odor of metabolized alcohol was expert testimony under the guise of lay testimony because an ordinary person would be unable to offer the same opinion. Admitting this evidence was not harmless because it was the only evidence that specifically refuted defendant’s testimony that he only began drinking alcohol after he had parked his car.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Juvenile’s Miranda Waiver Sufficiently Reliable Under Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Barrios on Monday, January 28, 2019.

Juvenile—Miranda—Advisement Waiver.

In this case, the supreme court considered whether a juvenile’s Miranda advisement waiver was reliable under the totality of the circumstances. The court held that the police detective complied with the provisions of the juvenile Miranda waiver statute, C.R.S. § 19-2-511, and that the concerns identified by the trial court do not undermine the reliability of the waiver. Because both the juvenile and his legal guardian were fully advised of all the juvenile’s rights and the juvenile issued a reliable waiver, his statements to police should not be suppressed. Accordingly, the trial court’s order suppressing the juvenile’s statements was reversed.

Summary provided courtesy of Colorado Lawyer.