June 25, 2019

Archives for January 18, 2019

Total Work

Andrew Taggart is an entrepreneur, “practical philosopher,” and prolific writer who works with creative leaders at the Banff Centre for Arts and Creativity and social entrepreneurs at Kaospilot in Denmark. In a recent article, he comments on the state of “total work,” a term coined by German philosopher Josef Pieper in his 1948 book Leisure: The Basis of Culture, which described the process by which society increasingly categorizes us as workers above all else. Like Pieper, Taggart believes human experience derails when work is the dominant cultural norm:

Imagine that work had taken over the world. It would be the centre around which the rest of life turned. Then all else would come to be subservient to work.

And how, in this world of total work, would people think and sound and act?

Everywhere they looked, they would see the pre-employed, employed, post-employed, underemployed and unemployed, and there would be no one uncounted in this census. Everywhere they would laud and love work, wishing each other the very best for a productive day, opening their eyes to tasks and closing them only to sleep.

Everywhere an ethos of hard work would be championed as the means by which success is to be achieved, laziness being deemed the gravest sin. Everywhere among content providers, knowledge brokers, collaboration architects and heads of new divisions would be heard ceaseless chatter about workflows and deltas, about plans and benchmarks, about scaling up, monetisation and growth.

[Work becomes total] when it is the centre around which all of human life turns; when everything else is put in its service; when leisure, festivity and play come to resemble and then become work; when there remains no further dimension to life beyond work; when humans fully believe that we were born only to work; and when other ways of life, existing before total work won out, disappear completely from cultural memory.

Crucially, the attitude of the total worker is not grasped best in cases of overwork, but rather in the everyday way in which he is single-mindedly focused on tasks to be completed, with productivity, effectiveness and efficiency to be enhanced. How? Through the modes of effective planning, skilful prioritising and timely delegation. The total worker, in brief, is a figure of ceaseless, tensed, busied activity.

Hmmm, sounds a lot like the practice of law… But it’s not just lawyers, it’s everywhere. For the movers and shakers it’s build, fund, scale, execute, maximize, prioritize, manage, lead. For the rest it’s be early, stay late, be nice to callers and customers, and get through all that email — there might be something important in there. And everywhere it’s build the platform, get the clicks, likes, and follows, join the meetups and podcasts, eat healthy, buy the Peloton and the Beemer, learn a new language, take the beach vacation, drink the microbrew, subscribe to the curated monthly clothing delivery… it all counts.

There’s nothing intrinsically “bad” in all of that. I do a lot of it myself. But when everything we do is organized around trading our time and energy for reward in the marketplace, we’re going to suffer, individually and as a culture:

To see how [total work] causes needless human suffering, consider the illuminating phenomenology of total work as it shows up in the daily awareness of two imaginary conversation partners. There is, to begin with, constant tension, an overarching sense of pressure associated with the thought that there’s something that needs to be done, always something I’m supposed to be doing right now. As the second conversation partner puts it, there is concomitantly the looming question: Is this the best use of my time? Time, an enemy, a scarcity, reveals the agent’s limited powers of action, the pain of harrying, unanswerable opportunity costs.

Together, thoughts of the not yet but supposed to be done, the should have been done already, the could be something more productive I should be doing, and the ever-awaiting next thing to do conspire as enemies to harass the agent who is, by default, always behind in the incomplete now. . . . One feels guilt whenever he is not as productive as possible. Guilt, in this case, is an expression of a failure to keep up or keep on top of things, with tasks overflowing because of presumed neglect or relative idleness.

The burdened character of total work, then, is defined by ceaseless, restless, agitated activity, anxiety about the future, a sense of life being overwhelming, nagging thoughts about missed opportunities, and guilt connected to the possibility of laziness.

In other words, total work is chronically stressful — a well-documented source of mental, physical, relational, and societal ill health. And the problem is, if we’re not already there, we’re alarmingly close:

This world [of total work], it turns out, is not a work of science fiction; it is unmistakably close to our own.

As a result:

Off in corners, rumours would occasionally circulate about death or suicide from overwork, but such faintly sweet susurrus[1] would rightly be regarded as no more than local manifestations of the spirit of total work, for some even as a praiseworthy way of taking work to its logical limit in ultimate sacrifice.

More on that coming up.


[1] I had to look up “susurrus.” It means “whispering, murmuring, or rustling.”

Kevin Rhodes studies and writes about economics in an effort to understand the world his kids are growing up in, which is also the world he’s growing old in. You might enjoy his latest LinkedIn Pulse article “The Fame Monster: Rockstars And Rockstar Entrepreneurs.”

Nominations are Now Being Accepted for CBA and DBA Awards

Do you know an outstanding lawyer who has greatly contributed to the Colorado legal community? Nominate her or him for a CBA or DBA award!

Nominations are now being accepted for the CBA Award of Merit, which is awarded annually to a current member for outstanding service or contributions to the association, the legal profession, the administration of justice or the community. Eligible persons are those who are members in good standing of the CBA. Nominees should have an outstanding record of professional success, community service achievements, and a strong commitment to civic participation and inspiring others, whether within the legal profession or elsewhere. Nominations are due January 31, 2019. Make a nomination here. A list of past recipients can be found here.

The DBA Awards Committee needs your nominations for the DBA awards. Nominate an attorney by submitting a statement of why the nominee deserves the honor. The committee will consider the following criteria: involvement with the DBA; involvement with the CBA; community contributions outside the bar associations and legal career/accomplishments. The statement need not be a complete essay; just provide a few salient points and the committee will follow up with the nominator and nominee for complete details.

The 2019 award submission deadline is January 31, 2019. Make a nomination here: https://denbar.org/About/DBA-Award-Nominations

Award of Merit

Recognizes outstanding service and contributions to the DBA and legal profession, or rendered in the interest of the improvement of the administration of justice. Criteria: lawyer, judge or law professor who is a regular member of the DBA and whose distinguished career exemplifies the purpose of the Award of Merit. Click here for a list of previous winners.

Judicial Excellence

Honors a DBA member of the judiciary for extraordinary service or exceptional contributions to the improvement of the judicial system. Click here for a list of previous winners.

Young Lawyer of the Year

Recognizes outstanding service and contributions to the DBA, legal profession and community. Criteria: a Denver lawyer who is a member of the DBA and is younger than age 37 or has been in practice less than three years. Click here for a list of previous winners.

Volunteer Lawyer of the Year

Presented to a DBA member who has performed extraordinary voluntary legal or community service. Criteria: lawyer, member of DBA, who has volunteered with distinction for various pro bono projects. Click here for a list of previous winners.

Education in the Legal System

Honors teachers, programs, and/or schools that exhibit outstanding dedication to teaching students about civics, the American legal system, and the Rule of Law. The DBA will provide a monetary gift to either the honoree teacher’s school, the program being honored, or the school being honored, in an amount and allocation to be determined by the DBA Board of Trustees. The gift will be used for educational purposes in the above described areas. Criteria: A teacher in a Denver school, a program conducted in a Denver school (whether or not sponsored by the school), and/or a Denver school educating students from kindergarten to twelfth grade. Click here for a list of previous winners.

Outstanding Programs/Projects

Acknowledges those programs or projects that uphold the highest traditions of the legal profession such as ethics, professionalism, education, access to justice, community service or promoting charitable causes. Recognizes exceptional collaboration between members of the bar. Criteria: A program or project affiliated with the DBA. Click here for a list of previous winners.

Colorado Court of Appeals: Governor’s Order Did Not Expire at End of His Term

The Colorado Court of Appeals issued its opinion in People v. Salgado on Thursday, January 10, 2019.

Powers and Duties of Attorney General—Executive Order—Medicaid Fraud.

In 1987, then-Governor Romer promulgated an executive order (the 1987 Executive Order) requiring the Attorney General, through the Medicaid Fraud Control Unit (MFCU), to investigate and prosecute Medicaid fraud and patient abuse cases. The 1987 Executive Order has never been repealed, rescinded, or modified. In December 2017, the MFCU filed a felony charge involving neglect of an at-risk adult against Salgado, an employee of an assisted living facility. The Jefferson County District Attorney filed a notice asserting that the Attorney General lacked legal authority or jurisdiction to file and prosecute the case. The district court found that Governor Romer had the authority to require the Attorney General to investigate and prosecute Medicaid fraud and patient abuse cases during his terms as governor but that reliance on the 1987 Executive Order to confer authority in 2018 would be an unconstitutional exercise of legislative power by the executive branch. It further found that a former governor cannot require the current Attorney General to act. The district court then dismissed the charge.

On appeal, the Attorney General argued that the district court incorrectly found that the 1987 Executive Order had expired at the conclusion of Governor’s Romer’s term. Absent a clear limitation on the effective lifespan of an executive order, or a limitation in the terms of the executive order itself, an executive order remains in effect until modified, rescinded, or superseded, and it does not expire simply because the issuing governor is no longer in office. Further, at the time it was promulgated, the 1987 Executive Order was not an act of legislation, and for 30 years the General Assembly has tacitly permitted and funded the MFCU’s operation. Therefore, the 1987 Executive Order directs, and therefore properly authorizes, the Attorney General in his or her own capacity to prosecute cases of Medicaid fraud and patient abuse in Colorado.

The judgment was reversed and the case was remanded for the district court to reinstate the charge against Salgado.

Summary provided courtesy ofColorado Lawyer.

Colorado Court of Appeals: Speedy Trial Rights Violated if Juvenile Not Brought to Trial Within 60 Days of No-Bond Order

The Colorado Court of Appeals issued its opinion in People in Interest of G.S.S. on Thursday, January 10, 2019.

Children’s Code— Juvenile Court—Delinquency—No-Bond Order—Speedy Trial.

G.S.S. was arrested and charged with two delinquent acts for threatening to shoot students at his middle school. He was placed in secure detention. At the initial detention hearing on May 2, 2017, the district court ordered that G.S.S. be held without bond. Numerous hearings were held over the next several months regarding the status of G.S.S.’s release from detention. On August 9, 2017 defense counsel moved to dismiss the case for violation of G.S.S.’s statutory speedy trial rights. The district court granted the motion.

On appeal, the prosecution argued that G.S.S.’s requests for continuances waived or extended the speedy trial period, and if there was a speedy trial violation, dismissal is not the proper remedy. Under CRS § 19-2-509(4)(b), a court is required to bring a juvenile to trial within 60 days of a no-bond order, so G.S.S. was entitled to a trial within 60 days of May 2, 2017, or July 1, 2017. The court did not hold a trial within that 60-day limit. In addition, counsel’s actions on behalf of G.S.S. were designed to get G.S.S. released, not to delay a trial date. Thus, G.S.S.’s requested continuances did not waive, toll, or extend the speedy trial period. Accordingly, the district court violated G.S.S.’s statutory speedy trial rights. Further, the court of appeals discerned that it was the legislature’s intent to require dismissal when a speedy trial violation occurs, regardless of whether the speedy trial period was established by a no-bond hold order or entry of a not guilty plea. Therefore, the district court did not err by dismissing G.S.S.’s case.

The order was affirmed.

Summary provided courtesy ofColorado Lawyer.

Colorado Court of Appeals: Under Rescue Doctrine, Plaintiff Must Have Physically Intervened to Stop Altercation

The Colorado Court of Appeals issued its opinion in Garcia v. Colorado Cab Co., LLC on Thursday, January 10, 2019.

Negligence—Personal Injury—Common Carrier/Passenger Relationship—Duty of Care—Rescue Doctrine.

A passenger in one of Colorado Cab Company’s taxis got into an altercation with the cab driver, Yusuf. Garcia, who thought the cab was the one for which he had called, approached the cab, told the passenger to leave Yusuf alone, and told them to stop fighting. Ultimately, the passenger assaulted Yusuf and Garcia and stole the taxi. The passenger then hit Garcia with the taxi, ran him over, and dragged him down the street.

Garcia suffered extensive injuries and sued Colorado Cab for negligence. Colorado Cab moved for summary judgment, arguing that it didn’t owe Garcia a duty of care and that any breach of such duty did not proximately cause Garcia’s injuries as a matter of law. The district court denied the motion. At trial, Colorado Cab moved twice for a directed verdict, based on the same reasoning in the summary judgment motion, and the district court denied those motions. A jury found for Garcia, and the district court entered judgment against Colorado Cab. The district court denied Colorado Cab’s subsequent motion for judgment notwithstanding the verdict.

On appeal, Colorado Cab argued that the district court erred in determining that it owed Garcia a duty of care. In this case, Garcia alleged that Colorado Cab’s failure to take safety measures caused his injuries, which is nonfeasance (the defendant’s failure to prevent harm). In such cases, a duty exists only if there is a special relationship between the plaintiff and the defendant, which, as relevant here, is a common carrier/passenger relationship. No evidence showed that Garcia was a passenger or prospective passenger of the cab, so as a matter of law, there was no common carrier/passenger relationship between Garcia and Colorado Cab. Further, Garcia does not fall under the “rescue doctrine,” which extends a defendant’s liability to a plaintiff who attempts to rescue someone (1) to whom the defendant owed a duty, and (2) who was in danger because of the defendant’s negligence. Here, although Yusuf was in imminent peril, there was no evidence in the record that Garcia attempted to physically intervene. Therefore, there was no basis for extending any duty to Garcia, and the district court erred in denying Colorado Cab’s directed verdict and post-trial motions.
The judgment was reversed and the case was remanded for the district court to enter judgment in Colorado Cab’s favor.
 

Summary provided courtesy ofColorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/17/2019

On Thursday, January 17, 2019, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Lipin v. Wisehart

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