Wednesday, April 17, 2019

Circumstantial Evidence and Bigfoot

     As the jury instruction says, "there are two types of evidence from which you may properly find the truth as to the facts of a case.  One is direct evidence.  The other is circumstantial evidence, that is, the proof of facts from which other facts may reasonably be inferred."

     Prosecutors are quick to point out "the law makes no distinction between direct and circumstantial evidence," although prior to 1973 in Colorado (and most jurisdictions) there was a distinction.  That year the Colorado Supreme Court (following then recent federal case law) changed the law, although two justices disapproved dropping the "long established … protection against the conviction of an innocent person upon wholly circumstantial evidence."  People v. Bennett, 515 P.2d 466, 471 (Colo. 1973) (an early drug war case when courts unfortunately began equating justice with convictions).  

     Prosecutors often give the example of footprints in the snow as circumstantial evidence someone has walked by.  Direct evidence of that fact of course would be an eyewitness.

     Defense attorneys try to explain that circumstantial evidence is not as good as direct evidence.  This is especially difficult to do since jurors reasonably think the lack of distinction as instructed makes both types of evidence equally good, when really it is supposed to mean both types are equally good or bad.

     Take the footprint example - they don't necessarily tell you when, or who, or why someone walked by - or if they were going forward or backwards, carrying something or someone, whether someone followed in them, etc., etc.  An eyewitness could tell you more of those things.

     To experienced defense attorneys, the more a prosecutor talks about circumstantial evidence the weaker the prosecution's case.

     Remember this:  circumstantial evidence is used to prove the existence of Bigfoot (footprints), the Easter Bunny (chocolate eggs in your backyard) AND Santa Claus (presents under the tree).  It is also used to convict the innocent.

     So, when you hear someone talking about circumstantial evidence proving, or confirming or suggesting something, be wary.

Wednesday, September 5, 2018

7 tips to be a more successful contractor

     We've dealt with many contractors over the years - including defending and prosecuting them in disputes and lawsuits around the country.  Here are 7 tips to help avoid trouble and be more successful:

1.  Put it in writing.  Be it a formal contract, a summarizing letter agreement, or confirming email(s), make sure the essential terms of the relationship between you and your client/customer are memorialized in writing.  At a minimum include start and completion dates (if its a best estimate, call it that), price and payment schedule, who pays costs and when, who to contact and how if there are questions or problems,  and the procedure for making changes to the project.  If it ain't in writing, it ain't.

2.  Provide status reports.  Periodically and routinely let the client know how work is going and things generally are progressing.  Emails and phone calls are best.  Give them the good, bad and ugly so as realistically to manage expectations.  Consider providing in writing a midway "half-time report," summarizing what's been done, paid for, what remains, changes to completion dates, etc.

3.  Lead from the front.  Show up frequently and set a good example.  Nothing beats enabling the client (and your own employees and workers) to see you - the main person, head honcho, owner etc. - on the job site, especially doing some of the physical work.  Leave your phone in the truck.

4.  Keep your promises and follow through.  Everything you say to a client (or an employee) sounds like or will be viewed as a promise, so communicate and act accordingly.  Things can derail fast when someone thinks you are not delivering.  Follow through without having to be nagged about it.

5.  Clean up.  Leaving a mess means leaving the job unfinished.  Clean up as you go and don't wait until the very end (or worse, to be told to clean up).  This is a good step to combine with #3 above.

6.  Accept responsibility.  Fix problems, discussing up front who should pay for it or share in the cost if other than you.  Make things right promptly.  Don't blame your employees or workers.

7.  Communicate.  Keep the client informed, even if its just a quick text message.  For example, if you need to reschedule a work day, an employee is sick, you are out getting materials, you received their installment check, etc.  Silence breeds suspicion and "worst case scenarios."  Frequent, timely communication is the single most important tip for helping ensure smooth relationships, repeat business, and referrals.

                                                                      * * *

    If you need help, call us here at Sanderson Law, P.C.  We've been helping people and businesses for nearly 30 years.  303-444-8846.

Friday, February 23, 2018

More gun control?

     In a perfect world there would be no guns, or violence.  In reality, in the U.S. alone there are more guns than people.  Alcohol prohibition failed.  Drug laws failed.  Countless laws regulate guns already.  "Gun free zones" are the most dangerous places in the nation.  Police can or will only do so much.  So, to see if you really support more so-called "sensible gun control," take this short quiz.

1.  If you and your family were locked in a room with 100 complete strangers, and only one person in the room had a gun, would you want it?

2.  If you were locked in the same room and knew others may have guns, would you want one, and if so, would you want the ability to shoot a lot of bullets or only a few?

3.  If you lived in a "high crime" area and were against having guns in the home, would you agree to keep a sign in your front yard saying your home was gun free?

4.  If your answer to #3 was yes, would you agree to have the police periodically search your home (and computer and cell phone etc.) to make sure you had no guns, at their discretion, or based on a neighbor's tip?

5.  Who do guns help more - the physically strong or the physically weak?

6.  When you were growing up, were any of the guns in your house used to shoot another person?

7.  Do criminals obey the laws they break?

8.  Do rich people and people in power - many of whom have bodyguards who carry guns - deserve more protection than you and your family?

9.  Can you think of any time in recent history - say the last 100 years -  where bad people with guns oppressed good people without them?

10. If you wanted freedom and security for you and your family, how would you change the 2nd Amendment to ensure both?

     There are no right or wrong answers - just sensible ones.  Thank you for participating.

Thursday, February 1, 2018

Why Do They Build Appellate Courts?

     "There's a reason they build appellate courts," is what my old boss used to say about cases we would consider appealing.  In civil and criminal cases, generally there is the right to one appeal of the trial court's final decision(s).  

    So, if the outcome of most any trial can be appealed at least once, should you appeal?  That depends on options (usually by this stage minimal), budget, time involved, goals of the case etc., and of course the chances of a favorable outcome.  The rate of reversal or similar is about 25% in state cases, and just over 10% in federal cases.  Far fewer cases end up at the highest appellate courts, like the applicable state or U.S. supreme court, mostly because those appeals are discretionary, meaning the appellate judges themselves decide whether to accept the appeal.  The likelihood of this is less than 10% (although once accepted, the reversal etc. rate approaches 50%).

     Appeals take time - framing the issues, preparing and filing the notice, compiling and reviewing the appeal record, researching law, drafting and crafting written briefs, preparing and handling any oral argument (also usually discretionary), and the like.  Two years to complete an appeal is not out of the ordinary.  Because time is money, appeals can cost many thousands.

     Many appellate decisions - the written opinion disposing of the matter usually authored by one appellate judge on behalf of a panel of three or more - are published and become precedent for future cases.  Transactional lawyers, regulatory lawyers and other non-litigators typically do not try or appeal cases, but they are guided by those precedents.

     Trial judges make mistakes too, and that is why they build appellate courts.

-courtesy of Sanderson Law, P.C., handling appeals, trials and everything in between, since 1992.  303-444-8846.

Wednesday, August 23, 2017

10 Tips for Better Judges

    During nearly 30 years practicing law, I've sat through numerous seminars where judges suggest tips to lawyers to make them better lawyers.  I've never heard of judges attending a seminar where lawyers are invited (or would dare) to suggest tips to make judges better.  Having tried all kinds of cases in all kinds of courts before all kinds of judges, here is my current "top 10" list of tips for better judges:

10.  Brush up on the the law before ruling on legal matters.

9.  Apply and enforce applicable rules of procedure.

8.  Apply and enforce your own rules (like case and trial management orders).

7.  Set deadlines and enforce them.

6.  Be consistent and diligently treat litigants the same.

5.  Be decisive - make timely decisions and rulings and stick to them.

4.  Use your power to do justice.  You're not a machine.

3.  Don't do the job of a litigant.  You're not a prosecutor or a defense lawyer.  You're the judge.

2.  Issue legible and unambiguous written rulings, the sooner the better.

1.  Resign once you become jaded. 

Tuesday, June 27, 2017

Can Spouses Testify Against Each Other?

     Like most states (and federal courts), Colorado has a marital privilege regarding testimony between a husband and wife which, if properly and timely asserted, provides as follows (CRS 13-90-107(1)): 

(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:

(a) (I) Except as otherwise provided in section 14-13-310 (4), C.R.S., a husband shall not be examined for or against his wife without her consent nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both spouses when the alleged offense occurred prior to the date of the parties' marriage. However, this exception shall not attach if the otherwise privileged information is communicated after the marriage.

(II) The privilege described in this paragraph (a) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401 (1) (a) (IV) and (1) (a) (V), C.R.S., or to level 1 or 2 drug felonies as described in section 18-1.3-401.5 (2) (a), C.R.S. In this instance, during the marriage or afterward, a husband shall not be examined for or against his wife as to any communications intended to be made in confidence and made by one to the other during the marriage without his consent, and a wife shall not be examined for or against her husband as to any communications intended to be made in confidence and made by one to the other without her consent.

(III) Communications between a husband and wife are not privileged pursuant to this paragraph (a) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime.

(IV) The burden of proving the existence of a marriage for the purposes of this paragraph (a) shall be on the party asserting the claim.

(V) Notice of the assertion of the marital privilege shall be given as soon as practicable but not less than ten days prior to assertion at any hearing.

         Prosecutors, judges and prosecuting judges do not like the privilege, and numerous exceptions may prevent its application including - communications made to a former spouse after the marriage; communications made during the marriage in the presence of a third person; if waived by the holder; in a criminal proceeding between spouses; when the offense occurred prior to the date of the marriage; for child abuse or sex offense or certain child murder cases; offenses against an at-risk person; or communications made for the purpose of aiding the commission of a future crime or present continuing crime.
         Ordinarily, the defendant-spouse may assert the privilege to prevent testimony.  However, the privilege reverses in the prosecution of certain specified class 1, 2 or 3 felonies.  In such cases, the privilege belongs to the testifying spouse-witness, instead of the defendant-spouse.                                                                    

         The reason for the privilege is to protect the sanctity and tranquility of the marital relationship.  "The rationale of the privilege is to protect the privacy and trust of the marital relationship and enable spouses freely to communicate and confide in one another."  Mueller and Kirkpatrick, Evidence, p. 478 (1995).

         "The party seeking to overcome the privilege has the burden of showing the privilege holder has expressly or impliedly forsaken the claim of confidentiality."  People v. Wickham, 53 P.3d 691, 698 (Colo. App. 2001).  
         Nor are privileged statements otherwise admissible under a hearsay exception.  See Edwards v. People, 129 P.3d 977, 980 (Colo. 2006) ("In Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),], the Supreme Court revised the criteria under which testimonial out-of-court statements may be admitted at trial when the witness who made the statements does not testify. Crawford involved a wife who refused to testify against her husband under marital privilege. 541 U.S. at 40, 124 S.Ct. 1354. As a result, the prosecution sought to have her earlier statement to police admitted at trial under a hearsay exception. Id. The Court held that the Confrontation Clause requires out-of-court testimonial statements by witnesses to be barred from use at trial unless the witness "was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54, 124 S.Ct. 1354.").
     The bottom line is that the marital privilege can be a useful tool in precluding damaging testimony, for good reason.  Call on Sanderson Law, PC, if you need help protecting yourself or your significant other.

Monday, February 27, 2017

10 Agreements Employers Can Use

  The following can be used by employers to help protect themselves, minimize expenses and headaches, and smooth employee relationships and terminations.  The writings need not be lengthy or complex.  In fact short and sweet is best.

1.  Employment Agreement.  Confirms in writing the essential terms of employment such as start and end date, pay, vacation and sick time, duties, discipline etc.  Even though Colorado (and most states) are employment "at will," a written employment agreement can prevent problems including minimizing ambiguities.

2.  Independent Contractor Agreement.  Establishes in writing the relationship (duties, expectations and responsibilities) between the employer and a person or entity acting as an independent contractor rather than an employee. This agreement is key in heading off problems with taxing authorities.

3.  Relocation Agreement.  Sets forth the terms and conditions of an employee's move to a new residence as part of the job.  Too frequently in such situations otherwise a question arises about who pays for what and when.

4.  Consent Agreement.  Used to obtain and verify employee authorizations for the employer to take actions, seek or disclose information, or maintain records that otherwise might be considered invasions of privacy or "none of the employer's business."

5.  Non-compete Agreement.  Restricts an employee from taking a job with a competitor.  These generally are more enforceable if limited in time and geographically. 

6.  Confidentiality Agreement.  Prohibits disclosure of information to third parties and competitors and may be necessary in view of HIPAA for example.

7.  Non-solicitation/non-interference Agreement.  Prohibits an employee who may be leaving from trying to take clients or consumers.

8.  Arbitration Agreement.  Requires an employee to arbitrate rather than litigate in court disputes with the employer.  Generally arbitration is faster, cheaper, and confidential, and does not provide for trial by jury.

9.  Last Chance Agreement.  Used in disciplinary or questionable performance situations where the employee admits misconduct or various shortcomings and is given one last chance to make right or face immediate termination.

10.  Separation, Waiver and Release, and Non-Disparagement Agreement.   Confirms the terms and conditions of an employee's departure and typically contains a (sometimes mutual) waiver and/or release of potential claims and agreement not to speak poorly of the other side.

  Of course other written agreements may be appropriate depending on circumstances.  Call Sanderson Law, P.C., 303-444-8846, if you or someone you know might need help.