February 17, 2019

Archives for January 29, 2019

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.

Tenth Circuit: Unpublished Opinions, 1/28/2019

On Monday, January 28, 2019, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Harris

Wickham v. Gibson

Case summaries are not provided for unpublished opinions.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