December 12, 2018

Colorado Supreme Court: Prejudgment Interest Applies in Garnishment Proceedings

The Colorado Supreme Court issued its opinion in Thompson v. Catlin Insurance Co. on Monday, December 10, 2018.

Appellate Mandate—Garnishment—Prejudgment Interest.
At issue in this garnishment proceeding was the amount of insurance proceeds owed to petitioners. The court of appeals grappled with the amount of this debt on four separate occasions. In Thompson v. United Securities Alliance Inc. (Thompson IV), 2016 COA 128 ¶ 27, __P.3d __, a division of the court of appeals upheld the district court’s determination of attorney fees and costs that the insurance company may deduct from the liability limit under its policy. It is this decision in Thompson IV about fees and costs that the supreme court reviewed here. First, it addressed whether the Thompson IV division erred when it upheld the district court’s decision to consider new evidence on remand from Thompson v. United Securities Alliance, Inc. (Thompson III), No. 13CA2037 (Colo. App. Oct. 16, 2014). Because the Thompson IV division reasonably construed the mandate issued by the Thompson III division, the supreme court perceived no error. Second, it addressed whether the Thompson IV division erred when it held that petitioners are not entitled to prejudgment interest in a garnishment proceeding. The court concluded that the division erred. Petitioners are entitled to prejudgment interest under C.R.S. § 5-12-102. Accordingly, as to the first issue, the court of appeals’ judgment was affirmed. As to the second, it was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Unnecessary Presence of Parents at Initial Consultation Voids Attorney-Client Privilege

The Colorado Supreme Court issued its opinion in In re Fox v. Alfini on Monday, December 3, 2018.

In this original proceeding pursuant to C.A.R. 21, the court reviews the district court’s order compelling production of a recording of the Petitioner’s initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that the Petitioner raised in a motion for reconsideration.
The supreme court issued a rule to show cause and now concludes that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court’s finding that the Petitioner had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, the court perceives no abuse of discretion in the district court’s ruling that the recording at issue was not protected by the attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Accordingly, the court discharges the rule to show cause.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Language in Fee Agreement Insufficient to Terminate Counsel’s Representation

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, November 29, 2018.

Criminal ProcedureConstitutional LawSixth AmendmentNotice of AppealIneffective Assistance of CounselCrim. P. 44(e)Termination of Representation.

Newell represented Lancaster at a criminal trial. The fee agreement between Newell and Lancaster included a provision that representation terminated at the conclusion of trial. A jury found Lancaster guilty on six of seven counts and he was sentenced in 2007. Following trial, Newell informed Lancaster that he would not represent him on appeal, but Newell did not withdraw from the representation. Thereafter, Lancaster did not timely file a notice of appeal. In 2010, Lancaster filed a pro se Crim. P. 35(c) motion alleging that Newell had been constitutionally ineffective by failing to file a notice of appeal. The motion was denied after a hearing.

On appeal, Lancaster contended that Newell was constitutionally ineffective in failing to file a notice of appeal on his behalf. Trial counsel’s representation of a criminal defendant terminates only as provided under Crim. P. 44(e), notwithstanding the fee agreement; therefore, trial counsel’s duty to perfect the defendant’s appeal is not discharged until the representation terminates pursuant to Crim. P. 44(e). Here, Newell’s failure to either file a notice of appeal on Lancaster’s behalf or withdraw pursuant to Crim. P. 44(d) and secure the appointment of the public defender to represent Lancaster on direct appeal constituted ineffective assistance of trial counsel. Because the ineffective assistance of trial counsel deprived Lancaster of his right to direct appeal of his conviction, he is entitled to pursue a direct appeal out of time pursuant to C.A.R. 4(b).

The order was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Gives: Metro Volunteer Lawyers Provides Representation to Low-income Coloradans

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Metro Volunteer Lawyers (MVL) is a program of the Denver Bar Association and is co-sponsored by the Adams/Broomfield, Arapahoe, Douglas/Elbert, and First Judicial District Bar Associations. MVL is committed to bridging the gap of access to justice by providing pro bono legal services to people who could not otherwise afford legal assistance.

MVL offers pro bono opportunities to attorneys, especially in the areas of estate planning, guardianships and conservatorships, family law, and consumer law. By volunteering with MVL, attorneys can receive valuable experience while assisting Colorado’s most vulnerable populations with their legal needs. Under C.R.C.P. 260.8, Colorado attorneys providing uncompensated pro bono legal representation may apply for 1 general CLE credit for every 5 billable-equivalent hours of representation, up to a maximum of 9 credits in each 3 year compliance period.

Give your expertise, as well as supporting MVL with a cash donation. Checks may be made out to Denver Bar Foundation. For more information or to donate, contact Tammy Ely via email or by calling (303) 824-5376. You can also submit an online application to volunteer.

Colorado Gives: Legal Aid Foundation Promotes Justice for All

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Civil Legal Aid helps low-income Coloradans solve serious legal problems that threaten their most basic needs. You can make a difference for some of the least fortunate and most vulnerable members of our community by making a Colorado Gives Day donation to the Legal Aid Foundation here.

Contributions to the Legal Aid Foundation support Colorado Legal Services (CLS), which is the only agency in the state that provides free legal services to over 10,000 Coloradans every year, giving priority to the poor, elderly and disabled in the greatest economic and social need. Unfortunately, for every person served by CLS, at least one income-eligible person is turned away because of inadequate resources.

As lawyers, we know first-hand the value and necessity of quality legal representation when faced with a potentially life-changing legal problem.  This is especially true of low-income families, whose basic survival may depend on being able to stay in their home, protect themselves from abuse or exploitation, or secure food and necessary health care.

Making a Colorado Gives Day donation is a quick and easy, and all donations receive a proportional “boost” from a $1 Million Incentive Fund.  Please join lawyers from around the state today to move Colorado closer to fulfilling the American promise of justice for all.

To learn more about the Legal Aid Foundation, please visit www.legalaidfoundation.org.

Colorado Supreme Court: Insurer’s Conduct Must Be Evaluated Based Upon Evidence Before it When Coverage Decision Made

The Colorado Supreme Court issued its opinion in Schultz v. Geico Casualty Co. on Monday, November 5, 2018.

Insurance—Bad Faith—C.R.S. § 10-3-1115—Fair Debatability—C.R.C.P. 35—Independent Medical Exams.

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s order requiring plaintiff to undergo an independent medical examination (IME), pursuant to C.R.C.P. 35, at defendant’s request. The court issued a rule to show cause.

In this case, plaintiff, who was insured by defendant, alleged that defendant insurance company breached its duty of good faith and fair dealing and violated its statutory obligation to evaluate and pay her insurance claim without unreasonable delay. Defendant denied liability, asserting that because the question of medical causation was “fairly debatable” at the time it made its coverage decision, it did not act unreasonably or in bad faith. To establish these defenses, defendant sought an IME of plaintiff, and over plaintiff’s objection, the district court granted that request.

The court concluded that defendant’s conduct must be evaluated based on the evidence before it when it made its coverage decision. Thus, defendant is not entitled to create new evidence to try to support its earlier coverage decision. The court further concluded that the district court abused its discretion when it ordered plaintiff to undergo an IME over three years after the original accident that precipitated this case and a year and a half after defendant had made the coverage decision at issue. The court therefore made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

From Here to There: How to Use Transitions

For many writers, transitions are a list of eleven words that start the first sentence of a paragraph. Here’s the list:

Also
First, Second, Third . . .
Furthermore
However
In Addition/Additionally
In Conclusion
Moreover
Nevertheless
Next
Therefore
Thus

When you read these transitions, they probably sounded forced and seemed disruptive. That’s because they were forced and disruptive. Few of us use transitions effectively.

Blame high school. Somewhere around junior year of high school a teacher told us transitions are necessary to move the reader from one topic to another. It doesn’t matter that everyone followed what we wrote sophomore year just fine. Now we are sixteen and need to use transitions. We learned quickly to start each new paragraph with one of those eleven words to get a check mark from the teacher. The teacher is gone, but the habit lives on.

There is a universe of more effective transitional words few writers use. But that’s only part of the problem. Transitions are more than a finite set of words and phrases. They connect more than just paragraphs. And they can go many places besides the first word of a paragraph.

We no longer write for high school teachers. Start thinking about transitions differently.

Transitional Words

Because most people associate transitions with specific words, let’s start there. Some words primarily function as transitions. In fact, there are dozens of these words. And when used effectively, these words do more than just flag a new point; they flag the relationship between the prior point and the new point.

Conveniently, Bryan Garner and Ross Guberman compiled lists of such transitional words (Guberman’s has 135 words). They categorized the lists by the purpose each word serves: to conclude, to add a point, to extract the essence, to show cause and effect, to compare, to give an example, to concede a point or preempt a counter-argument, to redirect, to emphasize or expand, to restate or summarize, to sequence ideas, etc.

Here’s a sampling:[1]

 

To show cause and effect To conclude or explain
And so

And therefore

And thus

As a result

Because

For

For that reason

In consequence

On that basis

Since

So

That is why

To that end

To this end

When

With that in mind

So

Then

Thus

Hence

And so

Because

And thus

In short

At bottom

Therefore

All in all

Accordingly

As a result

At its core

That is why

To that end

In any event

Consequently

In consequence

For that reason

To draw a contrast To press a point
At the same time

But

By contrast

Despite

For all that

However

In contrast

In the meantime

Instead

Nevertheless

Not

Rather

Unlike

Yet

In fact

As a matter of fact

Indeed

Of course

Without exception

Still

Even so

Anyway

The fact remains

Assuredly

 

 

A partial version of Guberman’s list is available online.[2]

Garner’s and Guberman’s categories have a wonderful side effect. To find a transitional word, you need to search for a relationship category. And to find the right relationship category, you need to understand the relationship between two of your points. In other words, choosing an effective transitional word requires you to organize and understand your own points.

Use transitional words to signal not just that you are making a new point, but also that point’s relationship with the prior point. As you’ll see in the examples below, using a variety of short transitional words can dramatically improve flow and clarity.

Backward-Looking Phrases

Another form of word-specific transitions are those that refer to a previously mentioned subject. Pronouns and articles like “this,” “these,” “that,” “those,” and “the” always modify a subject.[3] When that subject has been previously mentioned, you have a transition.

  • Under the doctrine of stare decisis, a trial court follows appellate decisions concerning the same legal issue and similar facts. Here, this principle requires . . .
  • Unbeknownst to Mrs. Smith, when the temperature dropped ice formed on the road. And the tanker in front of her leaked oil onto the road. These conditions . . .
  • S. v. Maverick held that any explicit claim that a movie was better than TOPGUN is prima facie evidence of defamation. That decision . . .

Unlike the lists of words mentioned above, these transitions do not flag a relationship. Nor do they connect points. Instead, they continue the story of a particular subject. This method is an effective way to elaborate on a subject, or take a subject in a new direction without making a new point. Look to use these to connect sentences or paragraphs.

Sentence Structure Transitions

Another method uses sentence structure to transition. Converting the direct object of one sentence into the subject of the next sentence creates a tight causal link between the two. You can chain this method together to create a domino effect that connects your starting point with an otherwise unrelated ending point. Take a look.

Example 1: Showing Factual Causation

When the workers left the construction site, they left the cement machine on. Because the machine was on for three hours, it started to leak oil. That oil seeped through the floor. From the floor the oil dripped onto the paintings.

The paragraph establishes a chain of causation. Each sentence begins with a cause and ends with an effect. In the next sentence, the effect becomes a cause. This method links precisely how the workers harmed the paintings.

This same technique works to show a lack of causation (break in causation, intervening causation, lack of foreseeability, etc.). Sometimes spelling out the entire chain of events shows the facts are more attenuated than your opponent suggests. For example:

The conductor extended his arm from the train to the sprinting man. The sprinting man barely clung to a bulky package. The bulky package was filled with fireworks. As the man leapt, the fireworks fell. When the fireworks fell, they caused an explosion. That explosion rippled to a large scale. The scale fell over. When the scale fell over, it hit Mrs. Palsgraf.

Example 2: Showing Legal Causation

The same technique can tie together related legal principles. Take a look:

Under the civil rules, a party may only sue if it has capacity to sue. By state law, businesses only have capacity to sue when they are in good standing with the Agency. Agency regulations grant good standing only when a company timely pays taxes and fees.

This paragraph uses transitions to establish a legal chain. Although different laws are at play, by the end the reader understands that a business can only sue when it has timely paid taxes and fees.

Similarly, this method can help articulate an opponent’s omitted legal premises:

The Defense claims the admission of character evidence before the grand jury violated the Fifth Amendment. But the claim only succeeds if (1) the Fifth Amendment’s grand jury clause has been incorporated to apply to the states, (2) that incorporated clause bars the use of character evidence, and (3) if such character evidence was used here. Because the grand jury clause is not incorporated, the claim fails.

Example 3: Connecting the Facts With the Law

Before making an incision, surgeons sterilize the skin to kill germs. Germs cause infections. Causing infections violates the “do no harm” principle. Violating that principle violates a physician’s duty of care. Such violations are always negligent. So Dr. Smith’s failure to sterilize the skin was negligent.

This paragraph uses transitions to tie sterilization (a fact issue) to negligence (a legal conclusion).

Transitions In Action

In these excerpts, watch then-attorney John Roberts, Justice Kagan, and former U.S. Solicitor General Paul Clement use some of the techniques described above.

Brief by Then-Attorney John Roberts

As the legislative history of the Act’s PSD provisions makes clear, the determination of BACT is “key” to a State’s ability to manage “growth” within its borders. S. Rep. No. 95-127, at 31 (1977). For this reason, Congress “place[d] this responsibility with the State, to be determined in a caseby-case judgment.” Id. (emphasis added).

. . .

Congress intended the State, in determining BACT, “to consider the size of the plant, the increment of air quality which will be absorbed by any particular major emitting facility, and such other considerations as anticipated and desired economic growth for the area.” S. Rep. No. 95-127, at 31. Given the nature of these judgments, BACT “is strictly a State and local decision.” Id.

. . .

But the EPA cannot claim that ADEC’s decision was “unreasoned.” Nor can the EPA assert that ADEC’s determination in any way results in emissions exceeding national standards or permitted increments. How to control emissions within those standards, without exceeding available increments, was for the State to decide.

. . .

Compounding its error, the court next stated that “the cost-effectiveness of recent NOx control BACT decisions ranged from $0 to $7,000 per ton of NOx removed,” and that the cost-effectiveness of SCR in this case was “well within the applicable range.” Pet. App. 14a. The figure the court relied on, however, pertained to ADEC’s recent BACT determinations for NOx control generally, not for NOx control for similar sources—i.e., diesel-fired electric generators used for primary power generation. See J.A. 205-206. As just explained, the cost of controls for similar sources ranged between $0 to $936 per ton of NOx removed, less than half the estimated cost of SCR in this case—$2,100 per ton of NOx removed. As noted, the EPA itself considers cost-effectiveness in light of “the range of costs being borne by similar sources under recent BACT determinations.” [4]

Ross Guberman observed Roberts’ use of short transition words throughout the brief, like “at bottom, also, under that approach, in short, to this end, because, then, for example, in each case, nowhere, in any event, of course, instead, to begin with, indeed, and thus, just to name a few.”[5] On placement he adds “instead of just sticking these transitions at the beginning of your sentences, place them closer to the verbs, where they are often more effective and interesting.”[6]

Opinion by Justice Kagan

Because parents and school representatives sometimes cannot agree on such issues, the IDEA establishes formal procedures for resolving disputes. To begin, a dissatisfied parent may file a complaint as to any matter concerning the provision of a FAPE with the local or state educational agency (as state law provides). See §1415(b)(6). That pleading generally triggers a “[p]reliminary meeting” involving the contending parties, §1415(f)(1)(B)(i); at their option, the parties may instead (or also) pursue a full-fledged mediation process, see §1415(e). Assuming their impasse continues, the matter proceeds to a “due process hearing” before an impartial hearing officer. §1415(f)(1)(A); see §1415(f)(3)(A)(i). Any decision of the officer granting substantive relief must be “based on a determination of whether the child received a [FAPE].” §1415(f)(3)(E)(i). If the hearing is initially conducted at the local level, the ruling is appealable to the state agency. See §1415(g). Finally, a parent unhappy with the outcome of the administrative process may seek judicial review by filing a civil action in state or federal court. See §1415(i)(2)(A).

Important as the IDEA is for children with disabilities, it is not the only federal statute protecting their interests. Of particular relevance to this case are two antidiscrimination laws—Title II of the Americans with Disabilities Act (ADA), 42 U. S. C. §12131 et seq., and §504 of the Rehabilitation Act, 29 U. S. C. §794—which cover both adults and children with disabilities, in both public schools and other settings. Title II forbids any “public entity” from discriminating based on disability; Section 504 applies the same prohibition to any federally funded “program or activity.” 42 U. S. C. §§12131–12132; 29 U. S. C. §794(a). A regulation implementing Title II requires a public entity to make “reasonable modifications” to its “policies, practices, or procedures” when necessary to avoid such discrimination. 28 CFR §35.130(b)(7) (2016); see, e.g., Alboniga v. School Bd. of Broward Cty., 87 F. Supp. 3d 1319, 1345 (SD Fla. 2015) (requiring an accommodation to permit use of a service animal under Title II). In similar vein, courts have interpreted §504 as demanding certain “reasonable” modifications to existing practices in order to “accommodate” persons with disabilities. Alexander v. Choate, 469 U. S. 287, 299–300 (1985); see, e.g., Sullivan v. Vallejo City Unified School Dist., 731 F. Supp. 947, 961–962 (ED Cal. 1990) (requiring an accommodation to permit use of a service animal under §504). And both statutes authorize individuals to seek redress for violations of their substantive guarantees by bringing suits for injunctive relief or money damages.

. . .

The IDEA’s administrative procedures test whether a school has met that obligation—and so center on the Act’s FAPE requirement. As noted earlier, any decision by a hearing officer on a request for substantive relief “shall” be “based on a determination of whether the child received a free appropriate public education.” §1415(f)(3)(E)(i); see supra, at 3.6 Or said in Latin: In the IDEA’s administrative process, a FAPE denial is the sine qua non. Suppose that a parent’s complaint protests a school’s failure to provide some accommodation for a child with a disability. If that accommodation is needed to fulfill the IDEA’s FAPE requirement, the hearing officer must order relief. But if it is not, he cannot—even though the dispute is between a child with a disability and the school she attends. There might be good reasons, unrelated to a FAPE, for the school to make the requested accommodation. Indeed, another federal law (like the ADA or Rehabilitation Act) might require the accommodation on one of those alternative grounds. See infra, at 15. But still, the hearing officer cannot provide the requested relief. His role, under the IDEA, is to enforce the child’s “substantive right” to a FAPE. Smith, 468 U. S., at 1010. And that is all.

For that reason, §1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape §1415(l) merely by bringing her suit under a statute other than the IDEA—as when, for example, the plaintiffs in Smith claimed that a school’s failure to provide a FAPE also violated the Rehabilitation Act. Rather, that plaintiff must first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she raises. But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA’s procedures is not required. After all, the plaintiff could not get any relief from those procedures: A hearing officer, as just explained, would have to send her away empty-handed. And that is true even when the suit arises directly from a school’s treatment of a child with a disability—and so could be said to relate in some way to her education. A school’s conduct toward such a child—say, some refusal to make an accommodation—might injure her in ways unrelated to a FAPE, which are addressed in statutes other than the IDEA. A complaint seeking redress for those other harms, independent of any FAPE denial, is not subject to §1415(l)’s exhaustion rule because, once again, the only “relief ” the IDEA makes “available” is relief for the denial of a FAPE.[7]

Brief by Paul Clement

There is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” Morrison, 529 U.S. at 618. “Under our federal system, the ‘States possess primary authority for defining and enforcing the criminal law.’” Lopez, 514 U.S. at 561 n.3 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1992)); see also Montana v. Engelhoff, 518 U.S. 37, 43 (1996) (plurality opinion) (“preventing and dealing with crime is … the business of the States”). None of this is to deny Congress’ ability to enact criminal statutes. But the federal government may step into the States’ traditional criminal realm only when it targets conduct that implicates matters of national or international, not just local, concern. Prohibiting assaults on ambassadors or poll workers or on federal enclaves is one thing; prohibiting assault simpliciter is quite another. “Were the Federal Government to take over the regulation of entire areas of traditional state concern,” rather than limiting its laws to matters of distinctly federal concern, “the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.” Lopez, 514 U.S. at 577 (Kennedy, J., concurring).

In keeping with that basic division of power, this Court has never accepted the argument that Congress may regulate criminal conduct with no nexus to matters of federal concern. Despite the gradual expansion of federal authority, this one constant has never changed. Indeed, the Court is typically unwilling to assume that Congress even attempted to “dramatically intrude[] upon traditional state criminal jurisdiction” in this impermissible manner. United States v. Bass, 404 U.S. 336, 350 (1971) (construing federal firearms statute not to reach every possession of a firearm); see also Jones v. United States, 529 U.S. 848, 855 (2000) (construing federal arson statute not to reach every building). And in the rare instances when the inference that Congress actually intended such an intrusion is unavoidable, the Court has not hesitated to hold the law unconstitutional. See, e.g., Lopez, 514 U.S. at 567 (holding unconstitutional federal law that sought to criminalize possession of a gun in a local school zone); Morrison, 529 U.S. at 617 (holding unconstitutional federal law that sought to regulate all gender-motivated crimes of violence).

There can be no serious dispute that a federal effort to criminalize every malicious use of chemicals throughout the Nation could not be reconciled with these fundamental principles. Poisonings and assaults involving harmful substances were not unknown to our founding generation. Yet it would have been unthinkable to the Framers that such matters would be anything other than a state concern. To be sure, there is some small subset of such crimes that touches on matters of federal concern. Even the Framers would recognize that poisoning the French Ambassador or a United States military officer would come within the federal ambit. And more recently, few would doubt that there is a distinct federal interest in eliminating particularly harmful chemicals from interstate commerce, or using chemicals to perpetrate acts of terrorism. But a statute that purported to federalize every malicious use of chemicals, without regard to whether that use has any nexus to a distinct federal interest, would remain a non-starter. When the government candidly conceded that its theory in Lopez would permit the criminalization of every assault, see Oral Argument Tr. 8–9, United States v. Lopez, No. 93- 1260 (1994), the argument was effectively over. To accept any theory of federal power that would permit Congress to usurp the core criminal jurisdiction of the States “would require” this Court “to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated.” Lopez, 514 U.S. at 567.[8]

Conclusion

Focus on transitions when:

  • Your writing feels choppy, jumpy, clunky, or abrupt
  • The section doesn’t “flow”
  • It’s unclear how a point or topic relates to the rest of the section/paragraph or the next point or topic
  • You feel like something is missing[9]

Keep in mind there are many ways to transition: words, phrases, sentence structure. And you may need transitions between sections, paragraphs, or sentences.[10]


[1] Bryan A. Garner, Legal Writing in Plain English 86 (2d ed. 2013); Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 275 (2d ed. 2014); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 219-227 (2015).

[2] Ross Guberman, “90 Transition Words and Phrases,” Legal Writing Pro, https://legalwritingpro.com/pdf/transition-words.pdf.

[3] Garner, supra n. 1 at 83-87.

[4] Brief for Petitioner at 7; 18; 46, State of Alaska v. Environmental Protection Agency, 540 U.S. 461 (2004) (No. 02-658) (emphasis added), available at https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.

[5] Ross Guberman, “Five Ways to Write Like John Roberts,” Legal Writing Pro https://www.legalwritingpro.com/pdf/john-roberts.pdf.

[6] Id.

[7] Fry v. Napoleon Community Schools, 137 S.Ct. 743, 749; 754-55 (2017) (emphasis added).

[8] Brief for Petitioner at 21-23, Bond v. United States, 134 S.Ct. 2077 (2014) (No. 12-158) (emphasis added), available at http://www.bancroftpllc.com/wp-content/uploads/2013/01/12-158-ts.pdf.

[9] See “Transitions,” The Writing Center University of North Carolina at Chapel Hill,  https://writingcenter.unc.edu/tips-and-tools/transitions/ (last visited Oct. 19, 2018).

[10] Id. For a more thorough handling of how to connect paragraphs using transitions, topic sentences, and concluding sentences see George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 136-43 (2004).

 

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 Court of Appeals: Sovereign Immunity Under CGIA Waived for Injuries Suffered During Operation of Jail

The Colorado Court of Appeals issued its opinion in Hernandez v. City & County of Denver on Thursday, October 18, 2018.

Negligence—Willful and Wanton Conduct—Colorado Governmental Immunity Act—Public Employee—Waiver of Sovereign Immunity—Jail Operation.

Hernandez sustained injuries while a pretrial detainee at the Denver Detention Center. She sued six of the jail’s employees, including Deputy Sheriff Dodson, alleging, as relevant to this appeal, willful and wanton conduct. Following an evidentiary hearing pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), and pursuant to C.R.C.P. 12(b)(1), the district court found that Dodson and another defendant had not engaged in willful and wanton conduct and therefore enjoyed immunity from suit on those allegations.

On appeal, Hernandez alleged that the district court erred in finding Dodson was entitled to immunity. The Colorado Governmental Immunity Act provides that a public employee may not assert immunity in an action for injuries resulting from the negligent operation of a jail, regardless of whether the employee engaged in willful and wanton conduct. Because the allegations of willful and wanton conduct here do not raise an issue of sovereign immunity, the district court erred in dismissing them before trial via Rule 12(b)(1) and a Trinity hearing.

The order was vacated and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Age of Rental Car Driver Inconclusive to Support Tort Claims Against Rental Company

The Tenth Circuit Court of Appeals issued its opinion in Amparan v. Lake Powell Car Rental Companies on February 13, 2018.

Edmundo and Kimberly L. Amparan appeal from the district court’s grant of summary judgment in favor of Lake Powell Car Rental Companies on the Amparans’ claims for negligent entrustment and loss of consortium. The claims arose from a vehicle accident involving a motorcycle operated by Mr. Amparan and a Ford Mustang rented by Lake Powell to Denizcan Karadeniz and operated by Mevlut Berkay Demir. Because the Amparans failed to come forward with evidence from which the jury could find an essential element of their claim for negligent entrustment, the appeals court affirmed.

On July 14, 2014, a group of Turkish nationals, including Mr. Karadeniz, visited Lake Powell to rent two vehicles. Mr. Karadeniz produced a valid Turkish driver’s license and a valid credit card. Mert Tacir, another member of the group, produced a valid Turkish driver’s license. The owner and operator of Lake Powell, Paul Williams, asked the remaining individuals in the group if they possessed valid driver’s licenses. Mr. Demir responded that he possessed a valid driver’s license. At the time of the rental, all three individuals were 21 years old. Although Mr. Williams recognized that Mr. Karadeniz and Mr. Tacir were under the age of 25, he nonetheless agreed to rent to rent a Dodge Caravan and a Ford Mustang to Mr. Karadeniz and to permit Mr. Tacir as an additional authorized driver for the Ford Mustang. None of the other members of the group, including Mr. Demir, completed an “Additional Driver Application/Agreement.” However, Mr. Demir testified that he understood Mr. Williams’ inquiry into whether he possessed a driver’s license as a signaling that he had Lake Powell’s implicit permission to operate the vehicles. Because a reasonable jury could adopt Mr. Demir’s understanding, the Tenth Circuit proceeded under the assumption that Lake Powell implicitly entrusted the rental vehicles to Mr. Demir. Evidence in the record supports the conclusion that Mr. Williams’ decision to rent two vehicles to an individual under the age of 25 and to permit an additional driver under the age of 25 violates internal policies propagated by Lake Powell’s licensor, Avis Rent A Car Systems, LLC.

During the course of the rental, Mr. Demir operated the Ford Mustang. Mr. Demir, unfamiliar with the traffic rules governing left turns at intersections, turned left on a solid green light without yielding to oncoming traffic. Mr. Amparan, traveling in the oncoming direction, unsuccessfully attempted to swerve to avoid hitting the turning vehicle operated by Mr. Demir and the two vehicles collided. As a result of the collision, Mr. Amparan alleges he suffered multiple broken bones, a punctured lung, and various other injuries.

The Amparans filed complaint in New Mexico state court, naming Mr. Demir, Mr. Karadeniz, and Avis as defendants. Avis removed the action to federal court, where, after an initial round of discovery, the district court granted the Amparans leave to amend their complaint to add Lake Powell as a defendant. The amended complaint raised claims against Lake Powell for negligent entrustment, loss of consortium, and negligent supervision and training. Lake Powell moved for summary judgment, arguing, in part, that even if it implicitly entrusted the Mustang to Mr. Demir, it neither knew nor should have known that Mr. Demir was likely to operate the vehicle in such a manner as to create an unreasonable risk of harm to others. In response to Lake Powell’s motion for summary judgment, the Amparans filed a notice of testifying expert on both the risk posed by young drivers and standards of care in the car rental industry. The Amparans also contested Lake Powell’s motion for summary judgment, arguing in part that Lake Powell’s violation of internal policies regarding renting to, or approving as additional drivers, individuals under age 25 constituted sufficient evidence to permit the finding that Lake Powell knew or should have known that Mr. Demir was likely to operate the Ford Mustang in such a manner as to create an unreasonable risk of harm to others.

The district court indicated it would not consider factual assertions in the Amparans’ response to summary judgment that did not comply with District of New Mexico Local Rule of Civil Procedure 56.1(b) and Federal Rule of Civil Procedure 56(c)(1)(A). The district court denied Lake Powell’s motion to strike as moot. The district court deemed the motions to strike moot based on its conclusion that the Amparans’ evidence regarding Lake Powell’s alleged violation of internal policies was insufficient, on its own, to permit a reasonable jury to conclude that Lake Powell knew or should have known that Mr. Demir was likely to operate the Mustang in such a manner as to create an unreasonable risk of harm to others. The district court concluded that the disputes of fact with respect to whether Lake Powell entrusted the Mustang to Mr. Demir and whether Lake Powell violated any internal policies were not material because resolution of the disputes in favor of the Amparans did not alter the summary judgment decision.

On appeal, the Amparans argued that the district court failed to perform a proper analysis, in that a New Mexico court would view evidence of a violation of internal policies, which are also allegedly industry standards, sufficient to advance a claim for negligent entrustment. Alternatively, the Amparans urged the Tenth Circuit to address the merits of Lake Powell’s motions to strike. The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of Lake Powell on the Amparans’ claims for negligent entrustment and loss of consortium.

In an effort to overcome the extensive body of case law supporting the conclusion that the New Mexico Supreme Court would reject the proposition that evidence of a car rental company’s violation of internal policies is sufficient to establish the third element of a claim for negligent entrustment even where the entrustee possesses a valid driver’s license, the Amparans argued that their expert witness would testify on car rental industry standards regarding rentals to individuals under age 25. But the fact that evidence of a violation of an internal policy is probative on the question of negligence does not establish that the evidence is sufficient to make out a prima facie case of negligence. It cannot be said that the driver’s young age, on its own, makes it likely that the driver will cause an accident, will operate the vehicle in an incompetent manner, or will operate the vehicle in such a manner as to create an unreasonable risk of harm to others. For, if such were true, no individual in New Mexico could grant a person under the age of 25 permission to drive a vehicle without facing liability for negligent entrustment based solely on the entrustee’s youthful age.

Accordingly, the Tenth Circuit held that the New Mexico Supreme Court would conclude that evidence of a car rental company’s violation of internal policies on the minimum age of renters and drivers is, on its own, insufficient to establish the third element of a claim for negligent entrustment of a motor vehicle. Thus, the Amparans failed to advance sufficient evidence to make out a prima facie case of negligent entrustment.

The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of Lake Powell on the Amparans’ claims for negligent entrustment and loss of consortium.

Colorado Supreme Court: Tort Cannot Be Transaction Giving Rise to Obligation to Pay Money, Therefore Not Debt Per Fair Debt Collection Practices Act

The Colorado Supreme Court issued its opinion in Ybarra v. Greenberg & Sada, P.C. on Monday, October 15, 2018.

Finance, Banking, and Credit—Insurance—Statutory Interpretation—Torts.

Ybarra petitioned for review of the court of appeals’ judgment affirming the dismissal of her Colorado Fair Debt Collection Practices Act action against Greenberg & Sada, P.C. The district court dismissed for failure to state a claim, finding that damages arising from a subrogated tort claim do not qualify as a debt within the contemplation of the Act. The court of appeals agreed, reasoning that the undefined term “transaction” in the Act’s definition of “debt,” required some kind of business dealing, as distinguished from the commission of a tort; and to the extent an insurance contract providing for the subrogation of the rights of an insured constitutes a transaction in and of itself, that transaction is not one obligating the debtor to pay money, as required by the Act.

The supreme court held that because a tort does not obligate the tortfeasor to pay damages, a tort cannot be a transaction giving rise to an obligation to pay money, and is therefore not a debt within contemplation of the Act; and because an insurance contract providing for the subrogation of the rights of a damaged insured is not a transaction giving rise to an obligation of the tortfeasor to pay money, it also cannot constitute a transaction creating a debt within contemplation of the Act.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Phrase “Arising Under” in Arbitration Clause Should Be Interpreted Broadly

The Colorado Court of Appeals issued its opinion in Digital Landscape Inc. v. Media Kings LLC on Thursday, September 20, 2018.

Arbitration Clause “Arising Under”Broad DefinitionAttorney Fees.

Media Kings LLC (Media) entered into a contract to provide marketing services to Transcendent Marketing, LLC (Transcendent). Media then contracted with Digital Landscape Inc. (Digital) to provide advertising services to Transcendent. The contract between Media and Digital had an arbitration clause providing that any disputes arising under the agreement would be resolved by binding arbitration. Per the contract, Media agreed to pay Digital a portion of its earnings from Transcendent in exchange for Digital’s work on the project. Media failed to pay Digital, and Transcendent proposed that Digital take over the project. Digital’s principal officer agreed, but had one of his other companies take over the work. Thus, Media was effectively cut out of its agreement with Transcendent.

Digital sued Media for breach of contract, and as relevant here, Media filed a counterclaim alleging that Digital had breached the implied covenant of good faith and fair dealing. The district court ordered the parties to arbitrate the dispute. The arbitrator awarded Digital $68,197.41. While discussing the counterclaim, the arbitrator also referred to it as addressing a breach of Digital’s duty of loyalty to Media. The arbitrator decided that Digital still owed a duty of loyalty to Media that it had breached, and she awarded Media damages on the counterclaim. Lastly, finding that there was no prevailing party, she declined to award either party attorney fees. The district court confirmed the order.

On appeal, Digital contended that the arbitrator lacked jurisdiction to consider whether Digital had breached a duty of loyalty to Media because this claim did not “arise under” the arbitration clause. The court of appeals analyzed the phrase “arising under” and concluded that it was sufficiently broad to include the duty-of-loyalty counterclaim. Further, the arbitration clause was unrestricted.

Digital further contended that the arbitrator improperly converted the counterclaim alleging breach of implied covenant of good faith and fair dealing to a different one, breach of loyalty, which Media had not raised. It alleged that the ruling on this different claim was unfair and the award to Media was therefore void. The court found as an initial matter that the arbitrator did not intend to rule on a facially different counterclaim. But even assuming that she had, the different claim was within the issues that the parties had agreed to submit. The arbitrator did not exceed her powers because the substituted counterclaim “arose under” the contract between Digital and Media. Further, the evidence and arguments were encompassed in the breach-of-the-duty-of-good-faith-and-fair-dealing claim. The district court did not err when it confirmed the arbitrator’s award.

Finally, Digital argued that the arbitrator exceeded her authority by refusing to award attorney fees because neither party had prevailed. The court concluded there was clearly no prevailing party, so the arbitrator did not have to award attorney fees.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Whole Person Impairment Rating Relevant in Non-Workers’ Comp Personal Injury Case

The Colorado Court of Appeals issued its opinion in Herrera v. Lerma on Thursday, September 20, 2018.

Subsequent Accident Jury InstructionPersonal InjuryNegligenceEvidence RelevancyVoir Dire.

Defendant’s truck hit plaintiff’s car from behind as she slowed for traffic. A week later plaintiff was diagnosed with neck strain. The following year, plaintiff was involved in a second car accident in which she hit a car from behind. She testified that the second accident did not injure her.

A year later, plaintiff sought additional medical treatment for her neck and lower back. She sued defendant for negligence, claiming damages of $38,356.46. She was awarded $1,980.81 by a jury in economic damages and zero on her claims of physical impairment and noneconomic damages.

On appeal, plaintiff argued it was error to instruct the jury to consider whether the second accident worsened any injuries, damages, or losses caused by the first accident because defendant hadn’t presented any evidence supporting such an instruction. Here, neither party presented evidence that plaintiff suffered any injury or aggravation of an existing injury because of the second accident, so the evidence was insufficient to justify instructing the jury about the second accident and the trial court abused its discretion. Further, but for the trial court’s improper instruction, the jury might have reached a different verdict.

Plaintiff also argued that the trial court erred by excluding her expert’s testimony about her 15% permanent whole body impairment rating. Before trial, defendant requested that the court exclude testimony about plaintiff’s impairment rating. While it allowed testimony that plaintiff suffered an impairment, the court excluded testimony about the impairment rating as irrelevant under CRE 401 and prejudicial under CRE 403. The court of appeals could not discern any reason that the percentage rating of the impairment would not be relevant, and found reasons why it would be relevant. The court similarly found no support for the trial court’s belief that such testimony would be unfairly prejudicial, confusing, or misleading. The trial court abused its discretion by excluding the testimony.

Plaintiff finally contended that it was error for the trial court to prevent her counsel from asking prospective jurors during voir dire whether they had an interest in defendant’s insurance carrier. Counsel was entitled to ask the insurance question during voir dire to determine the biases and prejudices of the prospective jurors, so the trial court abused its discretion.

The judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.