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 now 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, 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 random discretion, or based on a neighbor's tip?

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

6.  Do you agree that guns make people equal (because they level the playing field in terms of self-defense)?  If so, to the extent gun control also disarms women and minorities - leaving them even more vulnerable - isn't gun control anti-women, racist etc.?

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

8.  Do criminals obey the laws they break?  

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

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

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

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.

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. 

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.

 

 

 

 

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.

How Does a Criminal Trial Work?

Most criminal cases - "more than 97%" according to the Nat'l Assoc. of Criminal Defense Lawyers - don't make it to trial; they plea bargain, which means the defendant gives up the right to trial in exchange for concessions from the prosecution.  When they do go to trial, it is most often to a jury (six jurors in misdemeanor cases and 12 in felonies).  Trials to a judge, called bench trials, are rare since a conviction requires that all the fact finders agree and as a defendant on trial it is better to require 12 people to decide you are guilty versus one person.

The trial day begins with preliminary matters such as witness and exhibit discussions, evidence questions, and pre-trial motions.  Next comes jury selection, where the prosecution and defense spend time under judge supervision vetting potential jurors.  This usually takes a couple hours, resulting in the jury being empanelled.  In most instances by noon the case is ready to go.

Opening statements follow.  These are non-evidentiary outlines to the jury by each side, telling them what they might expect the evidence - witnesses, exhibits - to show.  Throughout trial the prosecution carries the burden of proving the case and therefore goes first.  Opening statements typically are limited by the judge to 15 or 20 minutes each.

Then come the prosecution witnesses, first for direct examination, then cross examination by the defense lawyer, and followed up as needed with what is called redirect examination.  Exhibits may be introduced into evidence for jury consideration later.  In some cases the jurors themselves may submit written questions through the judge.

When the prosecution is finished, the defense has the chance to make various motions to the judge challenging the sufficiency of the evidence to that point.  These usually are denied. 

Then comes the defendant's turn.  The defense can make its opening statement at that point if it hasn't already.  Because the defendant may remain silent and otherwise is not required to introduce any evidence (and the jury repeatedly is instructed about this by the judge), defense witnesses etc. may or may not follow, subject to the same evidence rules and objections as the prosecution.  The defense then rests.

The prosecution now has the chance to rebut the defense case with additional witnesses or other evidence, as it feels necessary.  Ultimately the prosecution too rests.

Next the parties discuss and argue before the judge over jury instructions - lengthy written instructions from the court about how jurors should deliberate, treat evidence, what they may or need to consider, burdens of proof, etc.  This might take an hour or so.  Once the instructions are finalized (including objections noted for possible appellate review later), the judge reads them to the jury. 

Finally, the lawyers make closing arguments to the jury, again lasting 15-20 minutes each with the prosecution allowed to go first and last with a rebuttal closing.  The jury then goes to a separate room for deliberations, questions and verdict.

Most misdemeanor cases take at least a day and a half to conclude.  Of course they can take days longer.  Felony cases can last a week or more.

Trials are risky business and require a great deal of preparation and strategizing.  Call Sanderson  Law, P.C., 303-444-8846, if you or someone you know needs experienced legal representation.

Attorney Liens - 10 Real World Tips

     As valuable service providers attorneys too have the right to get paid.  Liens are a way to enforce that right.  In the real world, attorney liens sound better than they work, and they are fraught with risk.  Here are some tips to minimize trouble:

1.  Although it is customary to assert both, it usually is the charging lien that matters most.  A lien is  a “claim or charge on property for payment of some debt, obligation or duty.”  Black’s Law Dictionary (West 1979), p. 832.   Most state statutes provide for two kinds - a charging lien and a retaining lien.  For example in Colorado, see CRS 12-5-119 and 12-5-120.  A charging lien is one "on any money, property ... claims and demands ..., on any judgment they may have obtained or assisted in obtaining, in whole or in part, and on any and all claims and demands in suit for any fees or balance of fees due or to become due from any client."  The retaining lien is "for a general balance of compensation upon any papers of his client which have come into his possession ... and upon money due to his client in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party." 

2.  Accurate written notice of lien duly must be given, and filed in court as appropriate.  The lawyer can enforce the lien via motion in the context of the court case he or she handled (or is handling) for the client, or via a separate civil action.  The enforcement procedure otherwise is not well delineated or prescribed.  Generally it resembles a motion for summary judgment and should be handled accordingly.  At the outset, move to seal the file or at least limit public access.

3.  The lien is only as good as the underlying fee agreement and to that extent arguably subject to the rules that govern them.  If the lawyer has withdrawn from a court case giving rise to the lien, such withdrawal must have been justified (and approved by the court) and otherwise be completely consistent with the fee agreement.

4.  It is customary for the lien to generate all kinds of boundless and timeless scrutiny, counterclaims, accusations and grievances - valid or not.  Proceed accordingly including making sure the file supports the lien and the potential recovery is worth the brain damage.  Consider having an experienced lawyer outside the firm look over the file before pursuing the lien.

5.  Once the lien is pending, alternative dispute resolution should be considered (and likely will be required by the court anyway).  Non-binding mediation is preferred as it is quick, inexpensive, confidential and gentler on the parties.  A bad settlement may be better than a good judgment.

6.  Consider requesting the appointment of a special master if the underlying case involves particular areas of legal expertise.  For example, not all judges are versed in the nuances of a personal injury practice.

7.  It can take a year to resolve the lien (i.e. to determine its validity, amount, and enforcement), more of course if the judge overseeing the matter is slow to rule or there are appeals.  Expect at least one evidentiary hearing.

8.  The lawyer's (and staff) time spent on the underlying case will have huge influence on the validity and amount of the lien.  Accurate time records must be available.  Contemporaneous records are better than not, and non-contemporaneous records are better than none.  Bundling of time - the grouping of services reflected in a single time measurement -  is not preferred but is acceptable (although it may carry less weight with the judge).

9.  The case file of course must be tight, consistent and supportive before commencing the process, but don't expect the judge to read through every page.  Consider using affidavits to summarize services provided, time spent, costs incurred, client difficulties encountered, etc. 

10.  Expert evidence (most likely affidavits) may be necessary to support the lien (and counter it), but remember the lawyer who handled the case and client is the best expert and should assert him or herself as such throughout the process.

     Attorney liens are tricky.  Experience counts.  Call Sanderson Law, P.C., 303-444-8846, if you are considering one.