Top Ten Advice for New Lawyers

     From 25 plus years experience practicing law, here is my current top ten list of advice for new lawyers:

1.  It is the client's case so act accordingly.
2.  Don't procrastinate.
3.  Make "to do" lists and follow them.
4.  Read and apply the rules.
5.  Review, prepare, strategize and memorialize.
6.  Shepardize.
7.  Follow up.
8.  Timely return phone calls, emails, letters etc.
9.  Keep expenses down.
10.  There are no shortcuts.

What does a lawyer do?

Lawyer -v.

To advocate allege assert appeal bargain brief battle argue urge encourage cajole control console petition plead persuade dissuade defend demur deflect reflect object motion negotiate litigate mitigate mediate interrogate strategize theorize analyze organize apologize memorialize minimize emphasize legitimize rationalize neutralize update placate supplicate vacate inform perform advise counsel solicit elicit express address redress present represent research review investigate cogitate calculate speculate articulate estimate question answer shield involve solve resolve absolve combat communicate predict plan explain prove disprove evince convince include exclude preclude introduce deduce craft draft attack act react redact enact extract protect inspect discover disclose confide connect expect process produce propound expound respond contest protest retest meet greet confer infer refer defer deter check double-check proof learn discern listen hear talk speak seek tweak edit execute examine offer proffer demand decline accept reject claim name implead interplead supersede succeed sell excel proceed correct amend contend extend modify educate wait dictate type write right read fight cite surmise summarize Shepardize dispute refute rebut remind define conclude exude note tote appear cheer steer voirdire mail call deliver copy forward fax think enforce file serve send resend observe quash summon subpoena dance advance maintain debate state restate probate teach preach praise raise assist resist persist calm soothe smooth agree disagree instill distill open close instruct construct deconstruct parry sue do undo redo try retry practice perfect settle oversee underscore follow-up arrange engage assuage distinguish diffuse warn forewarn save sacrifice study steady ready intuit invoke simplify clarify justify rectify respect redirect relate exculpate anticipate appreciate ease please appease comfort assure help prepare care.

            - my take on what lawyers do, by Dave Sanderson 11/16/15

 

 

Expert testimony in defending sex assault cases.

     The following comes from a Colorado Court of Appeals case announced 10/9/14, People v. Brown,  permitting a defense expert to testify regarding defendant's likelihood of being the offender.  Prosecutors make frequent - often questionable - use of "experts."  As can be seen here, defense expert testimony can help too: 

“B. Defendant’s Expert Testimony

¶31      Trial courts have broad discretion to exclude expert testimony if it is unreliable or irrelevant, or if its probative value is substantially outweighed by the danger of unfair prejudice. People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007). We will not disturb the trial court’s ruling unless it is manifestly erroneous. Id. at 380.

¶32      All relevant evidence is admissible unless the United States or Colorado Constitutions, statutes, or court rules provide otherwise. CRE [Colorado Rule of Evidence] 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401; accord Jones, ¶17 (admissibility of evidence does not depend on a specific theory of relevance).

¶33      Here, defendant sought to admit testimony by a psychologist who performed a sex offense specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal.

¶34      The trial court excluded this evidence because it was irrelevant and an attempt to “back-door” an opinion that defendant was not guilty of the charged offenses.

¶35      Evidence that defendant did not have a statistically significant interest in voyeurism would tend to make it less probable that he videotaped the victims for the purpose of sexual gratification, which is an element of the offense of unlawful sexual contact. The evidence was therefore relevant to that charge.

¶36      Further, at a pretrial hearing, defense counsel and the psychologist made clear that the psychologist would limit his testimony to the results of his evaluation. They added that the psychologist would not express an opinion about defendant’s guilt or innocence of any charge.

¶37      We therefore conclude that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. The trial court should allow defendant to present such evidence on retrial.”

            If you or someone you know is charged with a crime, call Sanderson Law, P.C., or email arl@sandersonlaw.net, to help.  303-444-8846.

Can alimony (maintenance) be modified after divorce in Colorado?

Possibly.  If the parties' separation agreement provides for contractual maintenance (formerly known as alimony), which is typical, they likely have agreed maintenance may not be modified later.  If there is no such agreement, for example if maintenance was resolved by the judge issuing permanent orders, CRS 14-10-122(1)(a) applies and states in relevant part:

maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair, ...   The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment. 

Modification of maintenance must be based upon the parties' needs and circumstances at the time  rather than speculation about future conditions.  The trial court is without authority to modify a decree unless the threshold requirements of changed circumstances and unconscionability are established.  The statute above makes it even more difficult to obtain modification of property division, in the interest of finality.

The party seeking a modification bears a heavy burden, intended to discourage repeated or insubstantial motions for modification.  Failure to meet the heavy burden results in denial of modification.  Also, where the alleged change in the circumstances of the parties is one that the judge anticipated and made allowance for when entering the original divorce decree, such change is not a ground for modification. 

In exercising jurisdiction to modify maintenance courts will proceed with caution, and unless the evidence clearly shows that the original decree is no longer fair and just, it likely will not be changed.  

 

Withdrawing a guilty plea.

The law presumes legal proceedings are valid.  As courtrooms become more crowded and dockets busier, this presumption has become even tougher to overcome.  This is especially true with efforts to withdraw a guilty plea in a criminal case.  Judges simply do not have the time or inclination to "undo" what's been done.

Fortunately expediency still is not the sole consideration and due process requires a method to undo guilty pleas that are constitutionally suspect.  State and federal rules of criminal procedure provide a method to withdraw a guilty plea - even after sentencing - in circumstances where it would be just, although the task is usually a longshot in any event.

The longer one waits of course the less likely becomes any chance for success.  Wait too long and one may be barred altogether.  The most fertile grounds to investigate typically are the allegations underlying the charged offense (did a crime really occur), the judge's and/or prosecutor's rights advisements (required) before and during the plea hearing, and any colloquy between the judge and the defendant during the hearing especially if the defendant did not have a lawyer.  The analysis is quite technical and an experienced criminal defense attorney should be employed to handle the matter.

A tricky issue is whether the sentence can be put on hold - stayed - while the motion to withdraw the plea and related proceedings are investigated, prepared and otherwise pending.  This all takes time - weeks and months - and may not make sense if the sentence is executed meantime.  The law empowers the courts to stay a sentence pending further proceedings and this avenue should be pursued as necessary.

If you or someone you know wants to consider a plea withdrawal, call Sanderson Law, P.C., for advice and help.  303-444-8846.

Will Ex-Boulder Cop Sam Carter Appeal?

Convicted yesterday by a Boulder jury of all counts including three felonies relating to his shooting and killing of an elk in the city, Sam Carter is fortunate to be out of jail (on a personal recognizance bond) pending sentencing in late August.  Meantime he will have to meet with the Boulder probation department as it puts together its presentence investigation (PSI) report recommending to the judge the sentence he might impose.  Prison time is possible though given his lack of criminal history and the fact that no mandatory minimum prison sentences are at issue here, it is unlikely.  Some local jail time is more probable.

He has the right to appeal the conviction and/or the sentence to the Colorado Court of Appeals.  Issues could include, for example, the numerous jury instructions (written statements explaining applicable law read to the jury by the judge) - which appellate judges seem to love to analyze for mistakes - or evidentiary rulings which kept portions of the defense case from the jury. 

Such appeals can take a year or so to complete.  Historically, the "success rate," i.e., the chance of a reversal, is just under 25%.  Every case is different of course and much depends on the particular facts and rulings in the case.  Appeals are expensive because they take so much time to put together, including loads of legal research and brief writing and re-writing.  Oral argument to the three-judge appeal panel also requires significant preparation. 

Generally, appeal beyond the Colorado Court of Appeals, that is, to the Colorado Supreme Court, is discretionary with that court and is even more of a long shot.  Historically, the Colorado Supreme Court accepts just under 10% of the cases appealed to it.

Assuming Carter's police union-provided lawyers are covered through an appeal as of right, he doesn't really have anything to lose by doing so (especially if he remains out of custody during the appeal process, which is likely).

How risky are you?

Litigation - the process of trials and hearings where the outcome is determined by judge or jury - is fraught with risk.  Whether a civil or criminal case, client and lawyer continuously engage in a risk versus benefits analysis in deciding how next to proceed.  The following thought experiment demonstrates some of the points.

Assume you find yourself on The Price is Right, holding a box containing a 4-year prison sentence which you must complete.  On stage are 3 identical looking boxes and you cannot tell what is inside.  The first happens to have in it a "get out of jail free" card, meaning if you choose that box you do no prison time.  In the second box is a 4-year prison term (the same you are facing now), and in the third box is a 10-year prison term. 

Would you take the opportunity to exchange the box you are holding for a choice of one of the three on stage?  If you say no, you are "risk averse" and will take a plea or settlement offer pretty quickly.  If you say yes, you have done the math and concluded you "only" have a 33% chance of doing worse, perhaps a risk worth taking.

What if we change the scenario so that both box 2 and 3 have 10-year prison sentences?  If you say yes to choosing you are risky, willing to serve a 10-year sentence in the hope (against the odds) that you do no time.

What if we add a box, so that there now are 4 boxes on stage, one of which has the get out of jail free card, one which has the 4-year sentence, one which has a 10-year sentence, and one which has a life sentence?  How does that change your answer?

What if you have to pay to choose (i.e. to pay the lawyer trying to maximize your favorable odds)?  Does that change your analysis in each of the above scenarios?  How much would you pay? 

What if, in addition to paying to choose, you had to wait six months to make your choice?  Does the time factor play into your analysis?

Note that guilt or innocence, right or wrong, whether someone is a "good" or "bad" person, play no part in this experiment.  At some point, the kind of risk-benefit analysis demonstrated above influences the outcome of most any criminal or civil matter.  How risky are you?  Don't go it alone, Count on Sanderson Law, P.C., to help.  303-444-8846.