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.