Concealed Carry – 10 suggestions and insights from an experienced lawyer

  

 1. A concealed carry permit is not a license to kill. You have no more right to use a weapon than a person without a CCP. 

 2. Better to be tried by 12 than carried by 6. True, but the criminal and civil legal consequences following a shooting will test that. Once the trigger is pulled, your life will change. 

 3. If you must use your weapon, do so. If not, don’t. Most people carry mobile phones; use that if you can. Otherwise, once you shoot, holster/secure your gun and call 911. You will be recorded (so will your phone calls at jail). Stick to the few basic facts – “I’m calling to report a shooting. The address is ___. Send an ambulance.” Then hang up and wait. 

 4. For your concealed carry gun especially use factory ammunition of the same kind. Don’t mix. Some think mixing ammo makes you look untrained, sloppy, haphazard or even gangster. 

 5. Use the minimal powered round you’re comfortable with, preferably something with “defense” in the description on the box. Of course hollow points are good but know the jury will be told by the prosecution (and/or the plaintiff’s personal injury lawyer) – and the judge will allow – that hollow points are designed to maximize damage. Your jury won’t appreciate that hollow points are sensible self-defense rounds; they will believe that hollow points – or any other ammo designed for greater damage (stopping power) – are evidence that you are a bad person. 

 6. Carry whatever gun you want, but again understand that the jury – likely grossly ignorant of guns and how they work (and brainwashed by the media) - will get to see it and touch it. They will not appreciate its aesthetics or functionality as you do. They will fear it. The judge and court personnel – and the prosecutor - will treat it like its highly radioactive. 

 7. Shoot only as many times as you must, aiming for center of mass. Any shot other than to the front body of the person increases the chance of criminal charges and a civil lawsuit. Definitely no shots to the back or back side of the person. 

 8. Your concealed weapon presumably is not intended to be a battle weapon. Its for an emergency. The less offensive looking the better for you in the event of prosecution or lawsuit. 

 9. If you shoot, you probably will be arrested (at least one of the many law enforcement types responding to the scene will want to arrest you, and that’s all it takes), handcuffed, jailed, stripped, searched, fingerprinted, swabbed, held alone, watched, listened to, and interrogated. Your vehicles and home probably will be searched, as will your phones and computers (they’re looking for evidence the shooting was pre-meditated, i.e. not self-defense). A warrant will issue and all your guns and ammo will be confiscated (why? Because they can). Your spouse, girlfriend, roommates etc. will be questioned (and should politely decline to answer any questions about you). If there’s not enough evidence to charge (in the eyes of law enforcement and/or the prosecutor’s office) you should be released eventually. If charged you may be held without bail, or bail so high you can’t afford it. You then will remain in jail through trial 6 or 8 or 12 months later, the odds of which generally speaking are 70% for conviction. The sentence will carry a mandatory minimum of at least 10 years, give or take, somewhere in a more remote part of Colorado (hopefully). Know that from the moment you are taken into custody, you may not get out for a very long time. An appeal takes years and has about a 25% success rate. You will also be sued. You may win the criminal case and still lose the civil case (the burden of proof is lower). The person you shot – or his family – will try to take every penny you have left (after lawyers of course). Insurance will not cover alleged criminal conduct. 

 10. Beyond contact and identification by law enforcement, politely decline to answer questions. You will be in no condition to think clearly enough to understand and answer questions. Plus, assume they are looking for evidence of a crime – that’s what police do. Tell them you’d like to answer questions but have been told by your lawyer not to. Stick to that and stay silent (other than name, address etc.) “Lawyer” is a magic word to police – they’re taught to leave you alone once they hear it. 

     As a criminal defense lawyer practicing nearly 40 years, I can’t recall a time a client ever talked himself out of criminal charges. Usually its just the opposite. If law enforcement is asking you questions – interrogating you or “just trying to learn what happened” – its because they don’t have enough information to charge you! Don’t do their job for them. They probably don’t care that much about you, your family, your career, your reputation etc. They’re looking to make an arrest. Get an experienced lawyer on board ASAP.

Some musings on the changing Practice of Law

 I started in law school 40 years ago.  Here are some of the changes I've seen.

- Technology changed the economics.  Mobile phones, laptop computers, scanners, cloud storage, virtual meetings - these are way cheaper than buildings in downtown offices close to costly over secure courthouses in congested cities or towns.  Nor do lawyers anymore need such office space for secretaries to type and maintain paper files, or to house law libraries.  Good lawyers can be anywhere, and the smart ones already are.

- A diluting talent pool.  Just like in professional sports, there are only so many really good players.  The more teams, the fewer really good players on each.  Law schools are paid to pump out little lawyers.  Little lawyers become judges, prosecutors, defense attorneys, politicians (!) etc.  Add in the idiocy of DEI, and the "best and brightest" are becoming fewer and farther.  One fact that hasn't changed is clients want results.  When things get rough they don't care about claimed race, or sexual preferences/perversions, or pronouns, or any other virtue signaling madness.  Even the wokest of the woke will rather have a winning lawyer than one that checks all the boxes but loses.

- The system is overwhelmed.  Too many laws (many of them really dumb or partisan), too many people (so many of them non-English speakers), and trying to do too much to solve the world's problems via courtrooms (like addiction, domestic strife, neighborly disputes, incivility) clog, slow, choke and greatly cost increase what historically has been a system to resolve recognized substantial legal issues among citizens.  Courtrooms now too often sound like lame therapy sessions.  Whole industries leach off the system, from the prison/jail industry to probation departments to community service agencies to sobriety monitors to treatment providers etc. etc.

- Politics trumps justice.  Especially at higher levels - where one might expect better - judges/justices decide a result based on their politics and then work backwards to justify it (usually with hypocritical, tortured and shallow legal "reasoning").  They follow their feelings, not the law.  This sad development is getting worse, undercutting faith in and hope for what should be a strictly impartial system for Justice.

- Judges won't enforce rules.  Civil and criminal matters have longstanding, tried and true rules governing their process, evidence, pre-trial matters, and trial.  Partly because of their inadequacies, more and more judges (see talent pool dilution above) let slide rule violations.  This makes predicting what will happen in a case (something clients understandably want) much more difficult/impossible.  It increases the time and expense of cases for the same reason.  Judges are quick to complain that lawyers don't follow the rules.  In my experience, it's judges not enforcing the rules (or applying established law) that hurts the system.

"As is" clauses in contracts

The form contracts associated with selling or buying a home (or a vehicle for that matter) usually contain a clause that the sale is "as is."  Generally this means defects not otherwise hidden or disclosed may not give rise to redress after the deal closes.

However, language in the same contracts may undercut the as is clause.  Especially more specific language elsewhere may give rise to a cause of action for failing to tell the other side about known "adverse material facts" - in addition to misrepresentation, nondisclosure, concealment of defects or of course downright fraud.  

The bottom line is that "as is" will not protect in all circumstances and does not immunize from potential costly liability.  

 

Real estate disclosure requirements

     For our real estate agent and broker friends - or anyone thinking to sell or buy - an informative article appeared in the July/August 2024 edition of the Colorado Lawyer, entitled "Disclosure of Adverse Material Facts and Latent Defects in Real Estate Transactions."

     It discusses at length and summarizes disclosure duties connected with real estate transactions in the state, including "adverse material facts" (environmental hazards, zoning violations, structural issues, health risks, etc.) actually known, and "latent defects" (concealed water damage, soil conditions, environmental contamination, (maybe?) lack of building permits, etc.).

     Material issues noted in an inspection report following a failed transaction should be disclosed to buyers and sellers.  There is no duty to conduct independent investigations or verify inspector information.  "Matters of public record" generally are exempt from disclosure requirements. 

     Violations are enforced by the Colorado Real Estate Commission and/or via state court lawsuits seeking money damages claiming nondisclosure or concealment, negligence, and breach of contract, among others.

     Of course, there are numerous exceptions and nuances, and experienced legal advice should be sought for particulars.  Call or email us here at Sanderson Law, P.C., if you'd like help or more information.  We handle cases in Colorado and Wyoming.

Driver's license points suspension

Adult Colorado drivers accumulating 12 points in one or 18 in two years will get up to a one year  suspension notice from the state.  Carefully review CRS 42-2-127 for particulars and exceptions.  

Make sure timely to request the hearing you're entitled to, as you may be eligible for a probationary license, or a shorter suspension.  Last checked the phone number was 303-205-5606.

Also, because the rules and statutes change often, you never know what may come out of the hearing.  Have your lawyer attend with you.  Most everything with DMV is virtual, including the hearings.

The hearing officer may ask you questions under oath so be prepared, including whether you've been driving when you weren't supposed to be.  The hearing officer is looking for aggravating and mitigating factors to determine the suspension and terms.  Good behavior, completing requirements, and employment, education and health needs, usually are relevant.

The hearing officer will send out a written order, which is appealable.

 

Unanimously rejected. What does it mean?

Richard Gabriel, Melissa Hart, William Hood, Monica Marquez.  These are the four Colorado supreme court judges who, on the eve of Christmas 2023, nearly excluded millions of Colorado voters - and jolted the 2024 election process - by deciding to exclude the leading candidate from the upcoming presidential ballot.  Recognizing the obvious threat to democracy, a unanimous U.S. Supreme Court swiftly reversed and rejected that effort.  See Trump v. Anderson, decided 3/4/24.

A unanimous and unusually quick decision from the nation's politically diverse highest court might suggest one of two things:  Either the Colorado judges are not very smart lawyers OR they acted from biased political motives.  I suppose it could be both.  For sure the U.S. Supreme Court's swift action confirms the four Colorado judges made a BIG and DANGEROUS mistake.  

Confidence in Colorado's highest court - as currently comprised - is damaged beyond repair.  Why?  Who wants judges that act out of ignorance or bias, especially the state's highest judges?  If they just didn't understand what they were doing, or overlooked legal authority to the contrary (or not existing), or mistakenly read the law, or ignored the potential huge negative consequences of their decision, they probably are not the best qualified for the job.  

If they had doubts about whether precedent adequately supported their democracy threatening decision (remember three of the judges on the same court loudly dissented), or just weren't sure if it was the right decision, they should have erred on the side of NOT disenfranchising millions of voters!  

If they decided the case to keep a candidate they dislike from being elected, they're not impartially deciding cases on the merits, as normally required.  The lady holding the scales of justice is blindfolded for a reason!  These judges are supposed to uphold our constitutional rights, our democracy, and otherwise protect life, liberty and the pursuit of happiness, regardless of politics.

Every year thousands of folks in Colorado ask this same Colorado high court to review their case.  Many of these folks unjustly languish in prison, have had children taken away, face devastating judgments, or seek relief from other horrendous consequences.  The court accepts roughly less than 10% to review (and then reverses nearly half of them).  The U.S. Supreme Court faces even more pressures and demands from people in need.  Why did these four Colorado judges decide this case so badly?  Even the most liberal justices on the U.S. court joined in as if to say "duh!" in stopping the Colorado court.

The Colorado court's decision, threatening the very basis of democracy - the right of the People (not a few judges!) to pick their government - will be a longtime embarrassment to many Coloradoans including those practicing law in the state.  Hopefully, if they don't resign before then (the truly honorable thing to do), Colorado voters will send these four - Gabriel, Hart, Hood & Marquez - back to a more private practice of the law.

Politics trumps justice?

             The unsigned decision disqualifying Trump from Colorado’s 2024 ballot confirms what experienced litigants know – politics often trumps justice. 

Whether you like Trump or not, the contentious 4-3 decision rests on weak factual grounds, shaky legal theory, and no compelling authority, and warrants anticipated closer review by the U.S. Supreme Court (which the decision's majority seems to dare).  

Three of the court’s seven judges (usually called justices at the supreme court level) dissented, that is, disagreed formally (and vehemently and at length), including its chief justice.  In sum, they object to the lack of required due process.  It was like using traffic court to convict for murder.  Excerpts follow:

“My opinion that [the case against Trump should have been dismissed] is dictated by the facts … particularly the absence of a criminal conviction ...  The questions presented here simply reach a magnitude of complexity not contemplated by the Colorado General Assembly for its election code enforcement statute. The proceedings below ran counter to the letter and spirit of the statutory timeframe because the [claim against Trump] overwhelmed the process. In the absence of an insurrection-related conviction, I would hold that a request to disqualify a candidate under Section Three of the Fourteenth Amendment is not a proper cause of action ….”  Chief Justice Boatright

“I have been involved in the justice system for thirty-three years now, and what took place here doesn’t resemble anything I’ve seen in a courtroom. In my experience, in our adversarial system of justice, parties are always allowed to conduct discovery [i.e. learn ahead of time about each other’s claims and evidence], subpoena documents and compel witnesses, and adequately prepare for trial, and experts are never permitted to usurp the role of the judge by opining on how the law should be interpreted and applied. …  [H]ow can we expect Coloradans to embrace this outcome as fair?”  Justice Samour

“Setting aside the factual questions, an insurrection challenge is necessarily going to involve complex legal questions of the type that no district court—no matter how hard working—could resolve in a summary proceeding.  And that’s to say nothing of the appellate deadline. Three days to appeal a district court’s order regarding a challenge to a candidate’s age? Sure. But a challenge to whether a former President engaged in insurrection by inciting a mob to breach the Capitol and prevent the peaceful transfer of power? I am not convinced this is what the General Assembly had in mind.”  Justice Berkenkotter

Sadly, the one judge majority apparently lacked the courage or courtesy to have its author sign the decision, dodging 2 million plus Colorado Trump voters.  In other words, one unknown judge disenfranchised all those folks.  This is even more stunning given this bench's recent public infatuation with so called Diversity Equity and Inclusion. 

Democracy doesn't work like that, and should be remembered next time all 4 majority justices - Richard Gabriel, Melissa Hart, Monica Marquez, William Hood - are up for re-election/retention.

The case is Anderson v. Griswold, 23SA300, 2023 CO 63 (12/19/23).

Operating an equine business

Riding lessons, horse training, shows, boarding or leasing at your horse property, this article discusses 5 steps to minimize risk and maximize success.

First is to make sure the property and facilities are well and timely maintained, in good repair, uncluttered, tidy and safe.

Second is signage.  When in doubt, post signs for visitors to read.  The main one is the equine activities waiver found at Colorado Revised Statutes (CRS) 13-21-119.  Others could be no outside dogs off leash, no petting/feeding animals not your own, "this horse bites," no alcohol etc.  Designate clear parking and trailer turn around areas.  

Third is to have signed and dated paperwork in place amounting to liability waivers/releases and hold harmless/indemnification agreements.   Everyone participating or attending should be asked to complete the forms.  Organize and keep hard copies on file.  

Fourth is paperwork confirming duties, responsibilities, expectations and obligations of the relevant parties.  For example, boarding agreements should specify who does what when and who is on the hook for injuries, vet bills, transportation, feed, tack, stall maintenance, daily care etc.  It should specify who is responsible for maintaining adequate damage, injury and liability insurance (usually the horse owner).  The more that is specified in writing the better.  Same for visiting trainers and the like, including who is responsible for matching horse and rider.  Keep it well organized, updated and in hardcopy files too.

Fifth is to (re)consider how the facilities are owned/operated and insured.  Some kind of corporate format may be best as it provides another layer of protection and organization.  Follow corporate formalities to maximize protection.  Tax, accountant and insurance professionals should be consulted.  If you have an insurance agent, ask him/her what equine activities are covered and not covered.  Supplement insurance as recommended.

Sanderson Law, P.C., is here to help.  303-444-8846.

Colorado firearms transfers - some exceptions

Colorado mandates "background checks" for private firearms transfers, i.e., two people buying or selling or gifting a gun.  No surprise the background check requires a fee, in addition to paperwork (including nonsensical questions on the background check form itself) and creeping government oversight.

There are exceptions (buried in the legislation, for example CRS 18-12-112(6)).  One excludes "antique firearms."  What is an antique firearm?   Colorado incorporates the federal definition at 18 USC 921(a)(3) & (16), which is "any firearm ... manufactured in or before 1898" or replica thereof, and muzzleloaders.

Other exceptions include a gift between "immediate" family members, transfers relating to a will or trust, and various "temporary" transfers.

Failure to comply carries criminal and civil liability consequences (ironic since people who use guns to commit crimes tend not to care about such things).

On being pulled over by police...

It happens to all drivers sooner or later.  A flashing cop car shows up in your rearview mirror.  Now what?

First, quickly but safely pull over.  Use your signal and keep it on.  Keep your vehicle running and wait for the cop to approach your window.  Keep your seatbelt on, turn off the radio.

Next, roll down your window half-way, say hello, and wait for the cop to initiate the conversation.  Be polite, very polite.  No sudden movements.  

Don't answer questions relating to potential criminal activity, like Do you know why I pulled you over, Do you know how fast the speed limit is, Have you been drinking, etc.  Instead, ask the cop if he'd like to see your driver's license, insurance and registration.  Ask if this is a good place to pull over, if you should turn off your car.

Don't agree to anything you don't have to, like a search of the car, or roadside sobriety tests.  If unsure, ask him if you have to do any of the things he is asking you.  If not, don't do it.  If it's an order, do it.  Remain polite.  Keep a smile but don't look foolish.

As soon as he stops asking you questions etc., ask if you are free to leave, for your license etc. back, and thank him for doing his job.  Volunteer no information, and slowly be on your way as soon as possible.  

Assume you cannot talk your way out of a ticket.  Talking only makes it worse.  The cop is not there to chat.  If he gives you a ticket, take it politely without reading it and, if he says its ok, be on your way.  Don't argue, or get angry.

Next day, calendar the court date, and call a lawyer.  Tickets generally can be pled down to something more acceptable, and may be worth challenging (or at least having a lawyer look it over).

Trial penalty

In criminal law, "trial penalty" refers to the potential harsh implications of exercising one's right to trial of the charges, as opposed to taking a deal (a so-called plea bargain).  

Mandatory sentencing, parole and a growing number of collateral consequences (job loss, can't own a firearm, restricted travel, can't vote, registering with local authorities, etc. etc.) make a conviction too risky.  And then there is the financial cost of proceeding through increasingly high stakes trial, with expensive expert witnesses, multiple investigators, numerous documents, the need for trial technology like computers and video, and of course hard working lawyers to pay. 

As a result, according to experienced attorneys (backed with statistics compiled by the influential National Association of Criminal Defense Lawyers) "the criminal justice system has been turned into a guilty plea factory.  So powerful is this penalty that even innocent persons will succumb to the threat of a worse outcome if they dare to risk the fundamental Sixth Amendment right to a trial."

Many trial judges are aware of this phenomenon and go out of their way to not impose additional sentence terms or length if possible (even matching the typical plea bargain sentences for similar cases).  Of course with mandatory sentencing - and political pressures - trial judges can only do so much.  The result is that prosecutors increasingly function as judge and jury too, which threatens faith and fairness in the criminal "justice" system.

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.

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.

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.

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. 

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.

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.

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.

Agistor Liens - securing the cost of caring for livestock

  Colorado enables a person boarding horses or other livestock belonging to another person to file a lien for the cost of that care.  It is known as an “agistor lien,” detailed at CRS 38-20-201-120 (“Agistor’s Lien Act”).  An “agistor” is "any rancher, farmer, feeder, herder of cattle, livery stable keeper, veterinarian, or other person to whom livestock are entrusted by the owner for feeding, herding, pasturing, keeping, ranching, or boarding, or providing medical care."  CRS 38-30-202(3).

  According to the statute (at subsection -203):

(1) An agistor shall have a lien upon the livestock entrusted to its care for any amount that may be due for feeding, herding, pasturing, keeping, ranching, or boarding such livestock, for medical care provided to such livestock, and for all costs incurred in enforcing such lien, including attorney fees. The provisions of this section shall not apply to stolen livestock.

(2) An agistor's lien shall be effective for the entire period during which the livestock are held by the agistor, and if the livestock referenced in subsection (1) of this section are sold, exchanged, or otherwise disposed of from the premises of the lienor by anyone other than the lienor acting on his or her own behalf or the lienor's agent, the lien created by this section shall continue and shall attach to the proceeds received or receivable from such disposition. To the extent an agistor's lien remains effective, such lien shall be superior to all other liens.

  As with most liens, agistor liens are more complicated than they sound, limited in their applicability and effect, and frustrating to enforce.  For example, for the lien to apply, the animal must belong to a person other than the agistor, there must be an underlying agreement to pay for the care, the person asserting the lien must have possession of the animal, and other factors.  If filing the lien does not result in payment within a certain time, a court may order the sale of the animal to satisfy the lien amount.  Other timing issues and limitations apply.

  If there is a dispute over who actually owns the animal, a more general lawsuit likely will be required to determine ownership and enforce available remedies.  Contact Sanderson Law, P.C., for help.

Accused college sex offenders deserve due process.

In a recent Colorado appellate decision, the court recognized that colleges ("private educational institutions") owe to their students "a duty of care in the course of [their] investigations and adjudications of allegations of non-consensual sexual contact...."  

This is significant because it means colleges that expel students accused of sex offenses on the weakest of allegations and evidence can be sued for damages.  As the court put it, "[a] mere allegation of sexual misconduct can be devastating to the accused. A determination that a person engaged in non-consensual sexual contact can potentially destroy the accused’s educational, employment, and other future prospects."

The court explained that "[a] student who is dismissed after the culmination of a partial or unfair investigation will likely suffer a diminished earning capacity and stigma from the expulsion, and may be prevented from engaging in their chosen profession."

The case - Doe v. University of Denver, 2022COA57, announced 5/26/22 - is a welcome affirmation of due process of law.