Tuesday, March 14, 2023

Jury duty

If you vote, pay taxes, register a vehicle, own property, or the like, you probably will be summoned for jury duty someday, most likely in the county where you reside.  Consider it an important civic duty and don't sweat it.  Thomas Jefferson said it was the most important right in a free society.  How does it work?

Read the summons carefully (and bring it with you). Usually, they are pretty good about explaining at least the showing up process, where to park, how to handle your employer, etc.

Once there, your group probably will be shown a 15-minute video explaining the selection process and what to expect if chosen as a trial juror.  Bring a snack, water, something to read while waiting.  Know you'll have to clear courthouse security.  "Hurry up and wait" applies.  

Plan the whole day, but most likely you'll be home before noon.  This is because most trials settle or are continued (postponed) at the last minute.  There will be more potential jurors sitting around than needed, so most end up going home early.  Because most jurisdictions follow the "one day or one trial rule," you can't be summoned for jury duty again for a year.  

If selected as a trial juror, do what you think is best during the deliberations and politely stick to your guns.  Keep an open mind and don't rush to judgment.  It all about justice, and you may be the next person facing the jury.

Thursday, December 1, 2022

Police need a valid reason to stop you.

In two recent cases, Colorado's highest court considered whether police had "reasonable suspicion" to believe a driver violated a traffic rule (safe lane change) to justify a stop, vehicle search, and seizure of evidence (drugs).  

In affirming the police lacked reasonable suspicion - including based on its own review of a police cruiser dash camera video of the alleged improper lane change - the court upheld the lower trial court's suppression of the evidence (usually no evidence means the charges are then dismissed).

These cases are notable mainly because (1) required "reasonable suspicion" has been so watered down over the years as to be not much of a hurdle for police anymore, and (2) the court justices reviewed the dash cam video supporting the defense (i.e., contradicting police testimony).

Bottom line is that lack of reasonable suspicion can be a powerful defense to criminal charges, from the smallest to the most serious.

The cases are People v. Deaner and People v. Barrera, decided 9/26/22.

Friday, October 28, 2022

7 steps to minimize the risks of an injury lawsuit

    Your friend talked you into letting her ride one of your horses.  An accident occurred.  There may be injuries.  Now what?

    Regardless of any waiver or release, you are at risk of being sued.  These steps can help head off a lawsuit and increase your chances of coming out of one ok:

1.    Quickly obtain medical assistance if needed/requested.

2.    Do not admit fault, wrongdoing or liability.  Note if your friend does.

3.    Write up an accident report.  Better yet, have your friend do it with you (and at least sign it).  Briefly describe the incident, date, persons and animals involved.  Note witnesses and their contact information.  Note any obvious or claimed injuries and whether medical service - an ambulance, first aid, a lift to the emergency room - was offered, refused, etc.  Stick to the facts.  Be concise.  

4.    Take pictures.  They're worth a thousand words.  Everyone has a cellphone camera.  Photograph the scene, the animal, tack or equipment involved, and obvious injuries or lack thereof.  If your friend (who probably hasn't been to a personal injury lawyer yet) says she's ok, take a cheesy pic of her smiling and giving you a thumbs up.

5.    Notify your insurer(s).  For example, if the incident occurred at your home and wasn't for business, your homeowner's policy probably applies.   Look at your insurance policy and follow its notice and reporting requirements.  Let your insurance agent know soon and in writing (email is fine). 

6.    Let your lawyer know too.  Keep him in the loop (among other things, it can help when dealing with obstinate insurance companies).  Lawyers are paid to worry about other people's problems, so let him do the worrying.  Have peace of mind.

7.    The deadline to start a lawsuit for personal injuries varies from state to state.  In Colorado, generally speaking it is within two years of the incident.  Save your report (plus photos, any signed waivers or releases, etc.) above for at least that time.  Share it with your lawyer for extra safe keeping.

    Check our website links to a sample form waiver and form incident report, and how civil lawsuits work.  Call us if you want experienced help.  Sanderson Law, P.C.  303-444-8846.

Thursday, October 20, 2022

Paying less to settle a dispute.

Assume you and a neighbor dispute how much money should cover accidental damage to his property (for example, you want to be neighborly and settle the matter of your goat getting loose and eating up his garden, or your kid broke a neighbor's window playing ball, or your husband ran over his mailbox, etc.).   

Options may include doing nothing, involving authorities if available, and if also needed, suing in court.  A better option may be to get a damage estimate or two (invite your neighbor to do the same) and offer to pay something in exchange for resolving the matter.

In the law sometimes this is referred to as an accord and satisfaction, a "method of discharging a claim whereby the parties agree to give and accept something in settlement of the claim and perform the agreement...."  Black's Law Dictionary, 5th Ed.

It often involves tendering (delivering or mailing to the neighbor) a check for the amount you're willing to pay anyway, with a note in the "memo" section like "In full satisfaction of any claims regarding" the incident.  The goal is to make clear (and in writing) the payment is being offered (and its acceptance/cashing constitutes agreement) to resolve the matter.

Your neighbor's cashing the check after writing on it "reserving rights" or some such generally will not avoid accord and satisfaction.  As the Colorado supreme court has stated, "[i]n the case of a check offered as 'payment in full' for a disputed amount, generally a creditor [your neighbor] cannot avoid the consequences of accepting the accord, i.e., cashing the check, by declaring that he does not assent to the condition attached by the debtor [you]."  Anderson v. Rosebrook, 737 P.2d 417, 419 (Colo. 1987).  As renowned New York state Chief Judge Cardozo put it way back in 1932, "What is said is overridden by what is done...."

Practically, especially since checks generally are good for 6 months, it gives your neighbor something to think about for a while (a bird in hand is worth two in the bush), puts your money where your mouth is so to speak, may be the "neighborly" thing to do, and overall may be a good way to resolve things cheaply and quickly.

There are risks.  Though rules of evidence may prevent it in court, "offering" to pay anything could be taken as a sign of culpability.  Any amount offered may lead to more demanded.  The law is uncertain as to whether this would be an enforceable accord and satisfaction in any one particular case (which tend to be fact specific).  But, since the amounts involved usually are relatively minimal (these cases otherwise might end up in a small claims court), it may be an option worth pursuing.

As always, it is best to consult an experienced lawyer when considering options. 

Monday, September 19, 2022

What is the Economic Loss Rule?

Here in Colorado - home base for Sanderson Law, P.C. - litigants in civil cases are apt to invoke something called The Economic Loss Rule.  

Adopted (and better explained) in Town of Alma v. AZCO Const., Inc., 10 P.3d 1256, 1264 (Colo. 2000), it precludes “a party suffering only economic loss from the breach" of a contract from pursuing "a tort claim [like negligence, interference with contract, most breaches of fiduciary duty, and the like] for such a breach absent an independent duty of care under tort law."  

The ELR is supposed to limit litigation (e.g., head off claims for the higher money damages possibly available for torts when the case more obviously arises from breach of contract between the same parties), and to encourage the parties to contract better (including risk allocation).  

In reality, like so many arguably well-intentioned rules and laws, the ELR's unintended consequences undercut its practicability.  It is confusing to parties, lawyers (especially those not based in Colorado) and even judges.  It leads to resources being spent litigating the rule, exceptions and application rather than the merits of the case.  It impedes settlement discussions with its uncertainty and unpredictability.  Appellate courts struggle with its scope.  The ELR's boundary remains unclear and risks contract law swallowing up tort law.

Tough to say how many other states have an economic loss rule or something like it, but it's not universal and maybe not even the majority.  If you have or are thinking about a case in Colorado, best to brush up on the rule, as you might be spending a lot of time and money arguing about it.

Monday, September 12, 2022

Responding to a Subpoena

    A subpoena is a court pleading amounting to an order to show up and/or produce documents (called a subpoena duces tecum, or SDT) or other materials.  It can be issued (by a judge, lawyer or court clerk) in a civil, criminal or administrative case or proceeding.  In Colorado (and federal court) civil procedure rule 45 governs subpoenas.  In criminal cases it is rule 17. 

    Failure to comply can result in contempt of court (some jail in really bad situations).  But "compliance" can cause problems too, like waiving confidences and privileges (HIPAA is one example) or unnecessarily and unwisely giving over information.  It is best to check with a lawyer before proceeding, as he or she will (should) among other things -

  1.  Make sure the subpoena properly was served.  Improperly served subpoenas generally are not enforceable.

  2.  Make sure the subpoena is not unreasonable, too broad, harassing, unduly burdensome or otherwise oppressive.

  3.  Coordinate compliance as necessary, i.e., where and when to turn over any documents ahead of time so as to avoid having to show up in court, protecting confidences, asserting privileges etc.

  4.  Negotiate with the other side and other interested persons or agencies to clarify or limit the subpoena if advisable.

  5.  Move to quash (you squash a bug, but quash a subpoena), that is, file a written motion in the relevant court asking to cancel or limit the subpoena ahead of its return date/time.

    Subpoenas can be little problems that turn into big ones.  Minimize problems by dealing with the subpoena including notifying your attorney as soon as possible.

Friday, August 26, 2022

Probation violation - Now what?

Most criminal cases resolve short of trial, many with a plea agreement including probation.  Even trial convictions can include a probation sentence.  Probation means - if you stay out of trouble and timely comply with its terms and conditions - avoiding worse consequences like jail or prison.  So, what happens if you mess up and are accused (and possibly arrested and jailed) of violating probation?

First, you'll get written notice of the alleged violation(s).  This is usually in the form of a complaint to revoke probation filed with the court overseeing the case, and a summons requiring you to appear in court to answer the allegations made by the probation department and prosecutor's office.

Second, you're entitled to a hearing - evidence and all - but typically not a jury, and under a lessor preponderance of evidence versus reasonable doubt standard.  An exception is if the alleged violation is a new offense, which triggers additional due process.  In Colorado - a more or less typical state when it comes to probation - details of the process can be found at CRS 16-11-206 and Criminal Procedure Rule 32.  Federal probation is an entirely different, and rare, creature.

Third, if revoked, you can be re-sentenced per the charge or charges you pled to, including jail or prison, fines etc. 

Meantime the prosecution likely will try to negotiate with you (your lawyer if you have one) a resolution short of proceeding with a hearing.  This mainly is because, if they or the judge wanted you in jail or prison in the first place, you'd probably already be there.  Instead, per a new agreement the terms and conditions and length of probation may be "continued" or extended, additional classes or treatment required, jail alternatives like day reporting, work release or in-home detention imposed, etc.  In other words, you usually get at least a second chance on probation, subject as always to judge approval.

One of the worst things about being a judge must be listening to people explain or excuse or try to justify why they violated probation (which sentence often really is a gift in the first place).  Judges do this a lot (get to court an hour or so early and see for yourself).  

Especially in cases where the alleged violation is missing appointments, failing to complete classes or treatment in time, not paying what is required, and the like, it may be better to admit, apologize and get on with it.  Cases involving "hot UAs," protection order violations, or new offenses, may justify increased push back, depending on your options.

It goes without saying that probation should not be taken lightly, and neither should revocation proceedings.  Consult an experienced lawyer first.