DOCKET Official Magazine of the Denver Bar Association
Vol. 39.6 I October/November 2017
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A Message from DBA President Franz Hardy
On the Town: Franz Hardy Sits Down with Colorado Supreme Court Justice Richard Gabriel Announcing the 2017 Docket Arts & Literature Contest Winners COLAP Wellness Corner: New Report Outlines Simple Ways to Improve Lawyer Well-Being
October/November 2017 I The Docket I 3
Letter from the Editor
The mission of The Docket is to educate and entertain the Denver legal community — we hope without being sued.
Volunteer Corner: For Pro Week, Get Introduced to Volunteering at MVL
From Trial Lawyer to Historian
DBA Member Highlight: J.Ryann Peyton
The Art of Inclusion
To Avvo or Not to Avvo?
Ethical Conundrums: Who's Liable When My Autonmous Car Crashes?
The Hate Crimes Education Task Force
Law Student Chronicles: The Value of Internships
Editor: Jessica Volz, email@example.com Managing Editor: Heather Folker, firstname.lastname@example.org Graphic Designer: Clair Smith, email@example.com Advertising: Clair Smith, firstname.lastname@example.org Docket Committee: Norman Beecher, Jerry Bowman, Adam Brown, Becky Bye, Ryan K. Carnes, Mariya Cassin, Craig C. Eley, David L. Erickson, Emma Garrison, James Garts, Peter E. Grandey, Ryan T. Jardine, Thomas L. Kanan, Jr., Robert J. Kapelke, Judith Keene, Elizabeth Leder, Paul F. Kennebeck, Kyle Martelon, Alicia J. McCommons, Daniel R. McCune, Margaret McMahon, Douglas I. McQuiston, William R. Meyer, Corinne C. Miller, Makenzie Morgan, Barbara J. Mueller, Peter Mullison, Heather O’Donnell, Natalie Powell, Gregory D. Rawlings, Eden Rolland, Alison Ruggiero, Julie Simmons, Marshall A. Snider, Daniel A. Sweetser, Erica Vargas, Anthony J. Viorst, Dennis P. Walker and Rachel Young 2017–18 DBA Officers: Franz Hardy, President; Maureen Watson, President-Elect; April Jones, First Vice President; Laura Liss, Second Vice President; Nancy Cohen, Immediate Past President; Daniel A. Sweetser, Treasurer; Jim Fogg, YLD Chair; and Patrick Flaherty, Executive Director
IN EVERY ISSUE 38
THE DOCKET A Denver Bar Association publication. Views expressed in articles are those of the author and not the views of the author’s employers, the Docket Committee or the Denver Bar Association, unless expressly stated.
2017–18 Board of Trustees: Josh Berry, Klaralee Charlton, Sarah M. Clark, Emma Garrison, Ruchi Kapoor, Matthew Larson, Margrit Lent Parker, J. Ryann Peyton and Shannon W. Stevenson
Write for The Docket: DBA members are encouraged to send story ideas, photos, tips, and articles for the Docket Committee’s consideration. We are looking for content by Denver attorneys for Denver attorneys, focusing on trends, courts and practice management, in addition to opinion and satire pieces. Please send ideas and member announcements to Editor Jessica Volz at email@example.com. The editor has the right to accept and reject submissions at her discretion. 303-860-1115 • dbadocket.org
DBADOCKET.ORG 4 I The Docket I October/November 2017
Copyright 2017. The Docket (ISSN 1084-7820) is published six times a year by the Denver Bar Association, 1900 Grant St., Suite 900, Denver, CO 80203-4336. All rights reserved. The price of an annual subscription to members of the DBA ($15) is included in their dues as part of their membership. Periodicals postage paid at Denver, CO and additional mailing offices. POSTMASTER send address corrections to The Docket, Denver Bar Association, 1900 Grant St., Suite 900, Denver, CO 80203-4336.
DEAR MEMBERS: Autumn is tinged with particular significance in the eyes of the Colorado legal community. October calls to mind Professionalism Month, Pro Bono Week and the Bar Admission Ceremony, where new lawyers are sworn in, ready to embark on a justice-oriented career. In November, the annual Stand Down for Homeless Veterans provides lawyers with an opportunity to serve those who have risked everything to protect the fundamental freedoms that form the brick and mortar of our nation. Here at The Docket, we are well versed in the law-related accomplishments of Denver Bar Association members. Regrettably, we seldom have the occasion to witness the ways in which many Denver lawyers use art and literature to bring work and life into some semblance of balance. This issue showcases this year’s winning entries and unveils the poignant stories behind their fruition. As lawyer-turned-artist Henri Matisse confessed, “Creativity takes courage.” We are fortunate to live in a city where the arts and freedom of expression are valued. While it is widely acknowledged that the Mile High City has a world-class art museum, performing arts complex, ballet company and symphony, as well as several iconic independent bookstores, few realize that Denver also boasts the oldest press club in the nation.
When Denver became the territorial capital of Colorado in 1867, a group of newspapermen began meeting as a press club. In recognition of the organization’s 150th anniversary, the Tudorstyle building on Glenarm Place in which the Denver Press Club is housed was added to the National Register of Historic Places. While the present is, in many respects, nothing like the past, the time is always ripe for cultivating artistically oriented passions and literary inclinations. In law and in life, where there’s a will, there’s a way. So go back to the drawing board, dig out your castaway pen and pad, and be the Renaissance person that the world needs you to be. You won’t regret it!
With warmest regards,
Jessica A. Volz, Ph.D. firstname.lastname@example.org
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303.586.8504 | www. f o r e n s ic s . e id e b a illy. c om October/November 2017 I The Docket I 5
A MESSAGE FROM DBA PRESIDENT FRANZ HARDY
THE JOURNEY THUS FAR: REFLECTIONS ON LAW AND LIFE need to know where we measure up so that we understand our limitations and how we can improve. If you have not failed, you have not truly tried. We owe it to ourselves (and to all those people who have helped us over the course of our lives) to reach our potential. The only way to find that potential is to fail and spring back along the way. Hard work beats talent. Have you ever had an opposing counsel who went to a better school and achieved more academically and professionally than you did? I have. As a younger lawyer, I questioned whether I was in their same league or could match their intellect. Over the years, I realized that hard work completely neutralized any resume-based differences. It’s amazing how powerful of a vehicle hard work truly is. By extension, there is something to be said for grit. Exceptionally difficult issues or tasks are usually not solved in moments of genius. Rather, they need to be painstakingly and deliberately worked through.
eing surrounded by great lawyers and people has taught me several lessons that transcend the practice of law into the domain of life philosophy. Watching talented leaders face difficult cases and challenging situations has shown me what true character means and how it is developed. As I reflect upon my observations and experiences thus far, five principles emerge as guiding forces that should direct us when we are tested as lawyers and as people. Do not fear adversity. Adversity is the one thing that nobody wants but everyone needs. Stressful cases involving high stakes, difficult personalities or other challenging dynamics actually make us stronger and more resilient as lawyers and as people. With past difficulties endured, we gain perspective on how to deal with and overcome adversity. Those prior challenges give us resolve and unveil an inner strength that we often didn’t realize existed. Failure is good for you. We learn more from failure than we do from success. I readily admit to dwelling more on my mistakes than on my achievements. But, in my view, that is how it should be. Failure is a good measurement of your capabilities and expended effort. We 6 I The Docket I October/November 2017
Time brings clarity. Time allows us to better develop and articulate our thoughts. While we live in an age where speed and responsiveness are important, the best lawyers ensure that they devote adequate time to thinking through tough problems and effectively communicating with others. My thought processs rarely gets worse with more time and deliberation. Challenge yourself. As humans, we like routine. That’s okay, as there is comfort and safety with the familiar. But it’s not okay to allow time to go by without changing up routines and requiring yourself to have new experiences. When we were kids, every experience was new, and we were expected to deal with the intimidations of novelty. Yet, now that we are older and have a greater ability to adapt, we suddenly stick to what and who we know. Affirmatively push out of your comfort zone. Whether through travel, meeting new people, or learning about and trying new things, make sure you consistently challenge your boundaries. Life is not static, so you shouldn’t be either. New experiences bring a different perspective to what you thought you already knew. D
the world, but has not solved one yet.” ~ Maya Angelou Maya Angelou, born Marguerite Annie Johnson (April 4, 1928– May 28, 2014) was an American poet, memoirist and civil rights activist. While living in Egypt in the early 1960s, she was romantically involved with South African lawyer and civil rights activist Vusumzi L. Make. She remains perhaps best known for her seven autobiographies, including I Know Why the Caged Bird Sings (1969).
Photo courtesy of the BBC.
OF NOTE: The popular BBC miniseries Poldark returns for a third season this fall. According to the fifth and sixth books in Winston Graham’s saga set in late eighteenth- and early nineteenthcentury Cornwall, we know that our hero, Ross Poldark (Aidan Turner), will have to decide whether to accept the role of magistrate or to put legal power in the hands of his greatest foe. With the Reign of Terror consuming France and civil and romantic unrest brewing at home, courtrooms are — for now — the least of Poldark’s troubles. Tune in to MASTERPIECE (PBS) on Sunday evenings through November.
TRIVIA Q: How is the Federal Bureau of Investigation
connected to French Emperor Napoleon I ? A: The FBI was founded by his great-nephew Charles Joseph Bonaparte. The FBI has, in more recent times, investigated arsenic levels in Napoleon I’s hair.
“Hate. It has caused a lot of problems in
Roy Lichtenstein, Masterpiece (1962)
DID YOU KNOW that Agnes Gund, president emerita of the MoMA, used $100 million from the sale of Roy Lichtenstein’s Masterpiece (1962) to start the Art for Justice Fund to effect social change? She cites Ava DuVernay’s documentary 13th as her inspiration.
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ON THE TOWN: CHAPTER TWO Franz Hardy sits down with Colorado Supreme Court Justice Richard Gabriel
recently had the opportunity to sit down with the Colorado Supreme Court’s newest justice, Richard Gabriel. I’ve been fortunate to know Justice Gabriel through the legal community over the years. He is one of the “nice guys.” We spoke about his “nice guy” reputation, his vantage on the legal profession, and his advice for new and established attorneys. His responses to these issues and more are well worth the read.
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HARDY: Justice Gabriel, can you tell us a little bit about your background?
GABRIEL: I was born in Brooklyn, New York and raised in a working-class family. My siblings and I were the first generation in our family to go to college. After getting through college and law school on substantial financial aid, I clerked for a federal judge in Baltimore, where I met my wife. After my clerkship year, I went to a large firm in New York, where I practiced business litigation. I worked there for over two years, and then in 1990, I followed Jill to Denver, where I joined the firm that was then Holme Roberts & Owen and is now Bryan Cave. I practiced there for about 18½ years in general business and intellectual property litigation, until my appointment to the Court of Appeals in 2008. I then worked on the Court of Appeals for seven years, until I was appointed to the Supreme Court in 2015.
HARDY: How’s the new job? GABRIEL: After two years, I can’t say that it is that new anymore,
but I am enjoying it very much. By definition, every case that we see is challenging and significant, which makes the job fun and meaningful. I also very much enjoy my colleagues and the lawyers who argue before us.
HARDY: What’s your vantage as a justice of the Supreme
Court? To be more specific, how do you see the profession now, as opposed to maybe how you viewed it as a Court of Appeals judge and a practitioner?
GABRIEL: When you are on this side of the bench, you are one step removed from the battles in the trenches and the emotions that come with that. It gives you a sense of perspective as to what really matters and what is persuasive in a case, as well as what battles need to be fought and which do not. I don’t fault lawyers for sometimes losing perspective when they are in the trenches and in the heat of battle. For the most part, I think lawyers try to do things the right way. But we are all human, and sometimes the heat of battle catches up to us. When you get on this side of the bench, though, it is easy to be divorced from that emotional side of things. That’s what we judges are supposed to do. And when you sit where I sit, you realize that cases tend to turn on a just a few key facts or legal issues. It is an interesting perspective to have. HARDY: Can you share one aspect of your job that is beyond deciding cases? GABRIEL: Well, a couple of aspects of my job come to mind.
My colleagues and I are on a wide array of committees that the Supreme Court oversees, and that takes up a fair amount of my time. One of the most fun parts of my job is the chance to serve as ex officio chair of district nominating commissions. Watching citizens work hard to send to the governor the very best candidates for judicial positions is very gratifying and instills great confidence in our merit selection process. Another aspect of my job relates to public outreach. I think it’s very important for a justice of the Supreme Court, and really all judges, to not be isolated in their chambers. So I make it a point to try to get out and speak
to the public. I’m very involved in a group called Our Courts, which was created to educate non-lawyer citizens about how our courts work. I think it is mutually beneficial for judges to meet the people we serve and for them, many of whom may never have met a judge before, to get to see that we are just human beings who work very hard to try to get it right.
HARDY: Do you miss the day-to-day practice of law in a law firm?
GABRIEL: I get asked that question a lot. I miss trying cases and
arguing appeals. I really enjoyed doing that. I do not really miss the business side of the practice of law. To me, law is a profession first, but in the type of practice that I came from, I can’t deny that there is also a business aspect to it, for example, billing time and developing business. I think I did okay at the business side of things, but that wasn’t the fun part for me, and I confess that I don’t miss that part.
HARDY: You’ve always had a reputation as a nice guy. We
had a case together. I was a first- or second-year lawyer at the time, and you were a partner on the other side. I learned your reputation first-hand. Is this something you work at, or is it something that’s just innate about who you are?
GABRIEL: Well, I appreciate that very nice comment. I think we
are who we are. I was raised by wonderful parents who taught me what’s right and how to act toward people. It matters a lot to me to treat people like I like to be treated, and I also try very hard never to forget where I came from. Although I think we’re born with our personalities to a large degree, I believe that we have enough control to avoid letting our life circumstances change who we are. If I ever get to a place where I think I don’t have the time, or I don’t think it is important, to say hello to someone on the street or to spend time with somebody who asks for a bit of my time, then I probably need to be doing something else.
HARDY: What changes have you seen in the DBA over your tenure as a practicing lawyer?
GABRIEL: The biggest change that I’ve seen is that people
frequently do not understand the huge benefit that bar membership brings. When I began practicing law, it was a given that you would join the bar association. And the benefits were obvious. The bar provided opportunities for networking, mentoring and continuing legal education, and everyone recognized the importance of the bar as an advocate for lawyers, including at the legislature, when issues affecting lawyers and judges came up. The bar still provides all of those benefits, but it seems far more difficult to get lawyers, and especially new lawyers, to see that. I think we need to reinvest in this effort, and I applaud the fabulous work that the DBA Young Lawyers Division and your predecessor, John Vaught, among others, have done in this regard. Young lawyers are the future of this bar association. We need to show them what the bar association can do for them.
HARDY: You’ve provided a lot of service to the legal community, such as the DBA Board of Trustees, various committee work and numerous presentations. Why? October/November 2017 I The Docket I 9
GABRIEL: I think all lawyers and all judges get a lot out of the
legal profession, and that is particularly true for me, given my background. In a million years, I never would have predicted that this working-class kid from Brooklyn, New York would be where I am now. Because of that, I have always been very conscious of the fact that I have a duty to give back. And that includes not only serving the profession in the ways you mentioned but also serving as a mentor. Some of the mentors that I had were among the greatest lawyers in Colorado history. I frequently mention the late Dan Hoffman as one example. Now, I’m at a position where I have the opportunity to mentor young lawyers, and it’s a joy for me to do that. And I will tell you that as a mentor, you get as much out of the mentor-mentee relationship as the mentee does.
HARDY: You’ve also always been a strong advocate of diversity and inclusion in the law. Where does that come from?
GABRIEL: My parents struggled, particularly financially, when
I was growing up, and I also saw occasional glimpses of antisemitism. I think that gave me a lot of sympathy for others who have to struggle, no matter what that struggle might be. I also believe deeply that we are all better when we’re in an environment that’s diverse and inclusive, and this is particularly true of our profession and our courts. Obviously, it’s critically important that citizens have confidence in our profession and in our courts, and I think citizens have more confidence in those institutions when the institutions look like them. Also, we clearly all benefit from diverse points of view. In this respect, I think the whole is greater than the sum of its parts, and this is particularly true for a court. It is very important for a judge to see and truly understand all sides of an issue to make the best possible decision. If important viewpoints are not represented, it makes our jobs much more difficult.
This article will be published during Professionalism Month in October. How has the legal profession’s climate changed since you began practicing? What are your observations of the climate now?
GABRIEL: The climate has changed in a number of different
ways. One is that when I got to Colorado from New York, it felt like a small collegial bar. People knew each other, and when you were across the table from someone, you expected to see him or her again. So, you acted accordingly. That’s changed. The bar feels larger to me, and my sense is that, in many cases, lawyers no longer feel like they are likely to see the lawyer across the table again. That, too, affects behavior. And although technology is great in many ways, I am not sure that it has been particularly helpful in terms of professionalism. It used to be that when you had an issue with someone, you picked up the phone or you would go see them. That personal touch promoted civil discourse and professionalism. When we are less personal and when we communicate only electronically, it makes it easier to act less professionally. It is easier to be rude to someone in an email than to his or her face. The second big change that I have noticed is the competitiveness of the legal environment. It’s harder now for young lawyers
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getting out of school to get jobs. Much harder than it was before. And when lawyers get jobs, it is far more competitive for them to advance, and it’s far more competitive among clients too. It used to be that law firms would have institutional clients that were with the firms forever. That is no longer the case, and the resulting pressures have created challenges for professionalism. Another thing that comes to mind is that the pendulum seems to have shifted pretty far from viewing law as a profession to law as a business. I alluded to that before. I have always maintained that law is a profession and, at some level, a business, but it is a profession first, and the two ideas are not mutually exclusive. I’ve always been of the view that professionalism is good for business, and my mentor, Dan Hoffman, is a good example of that. You couldn’t find someone who was more professional than he was, and he was one of the most successful lawyers in Colorado history. He did it by doing things the right way. A final thing that I think affects professionalism is the public’s perception of lawyers, and the media hasn’t helped in this. We have moved from the paradigm of Atticus Finch in To Kill a Mockingbird to the paradigm of Tom Cruise pounding the table and screaming at a witness, “I want the truth.” And judges are not immune here. We see plenty of television judges who get ratings by yelling at people. People have this new paradigm in mind when they call looking for a lawyer, and they often start the conversation by saying that they are looking for a bulldog. This only perpetuates the myth of what lawyers are supposed to do. The remedy is for lawyers to take the time to educate their clients as to what lawyers really do and how they are supposed to act.
HARDY: What advice would you give a newer lawyer? GABRIEL: To new lawyers, I would tell them to do what they
are passionate about. Law is stressful enough. It’s a hard job that we do. If you’re not doing something that’s meaningful to you and that you’re passionate about, it’s very easy to get burned out. Doing what you are passionate about is a good recipe for success.
HARDY: And what advice would you give to more established lawyers who have been around the block? GABRIEL: I would ask more established lawyers to recognize
that the environment has changed and that we have a particular obligation in this new environment to step up. And that includes volunteering to mentor new lawyers who do not have easy access to mentors, including the many lawyers who get out of law school and, for whatever reason, hang their own shingles. We have an obligation to help these lawyers to get established, to network and to learn how to practice law the right way. They are the future of our profession.
HARDY: As someone whom I’ve observed over the years who
works hard, takes exceptional pride in work product and has all of these extracurricular activities, do you have advice on work-life balance?
GABRIEL: To have any kind of work-life balance, you have to be
very organized. You also need to learn how to say “no,” which isn’t
a trial, “Sleep is a weapon.” A little bit of sleep really does go a long way. And the last thing I would say in terms of balance is to know when to shut off your phone and put it away. If you keep it attached and on 24/7, work-life balance is impossible.
HARDY: Tell us a little bit about yourself besides being a longtime practitioner and now a judge. GABRIEL:
I’ve been playing the trumpet for 46 years, and I’ve done so professionally for almost that long. I love all sports and particularly baseball. (I’m a die-hard Colorado Rockies fan and a reformed New York Mets fan). I like to ski. I like to play golf, although I'm not very good at it. I like movies and theater, especially musical theater. And I try to take advantage of the beautiful state that we live in.
HARDY: Your Honor, that’s all I have. Is there anything else that maybe I should have asked you or you wish I would have asked you?
GABRIEL: No, I think you’ve
always easy in this competitive environment. And you have to make whatever is important to you in your non-work life a priority, which also is not always easy. I confess that I’ve not always been very good at this myself. It is so easy to get wrapped up in what we are doing that we think we simply cannot take time off. But it is remarkable how easy it is to just walk away when you really have to. When my parents each passed away, I dropped everything and was gone for weeks. And everything that I left on my desk was there when I got back. Another good piece of advice came from another of my mentors, Bruce Black, who reminded a trial team in the middle of
covered it quite well. But I want to say I’m grateful for your time, Franz, and I’m particularly grateful for your commitment to the Denver Bar Association and to this legal community. You mentioned earlier the case that we had when you were a young associate. I have no memory of what the case was about, but I have a very clear memory of meeting you on that case. And at the risk of sounding sappy, it’s been a joy for me to watch you progress so successfully in our profession. I’m proud of all that you've accomplished, and as an active DBA member, I look forward to working with you as you serve our community as president of the Denver Bar and beyond.
HARDY: Aw shucks. D
October/November 2017 I The Docket I 11
VOLUNTEER CORNER For Pro Bono Week, Get Introduced to Volunteering at MVL
By Matt Pierce ro Bono Week, which runs from October 22–28, feels a little more urgent this year. With legal aid on the national chopping block, Colorado needs a boost in pro bono work now more than ever. The good news is that you can make a positive difference. The threat to legal aid is real and imminent. Colorado Legal Services (CLS) relies on the Legal Services Corporation (LSC) for approximately 40 percent of its funding. While the new budget has yet to be finalized, the House Appropriations Committee has approved a 25 percent cut to LSC. The administration’s proposed budget would cut LSC funding entirely. This threat looms larger given that, even at current funding levels, CLS is forced to turn away about half of those who seek its aid. This is where you come in. Lawyers like you can help Coloradans in need when CLS can’t. The level of need is significant, and lawyers are the only ones equipped to fill it. Plus, filling the current demand for low-cost or free legal services is just the short-term benefit; pro bono work also elevates the public’s perception of the profession and strengthens the rule of law by increasing access to justice for all. Those in the Denver area looking for a pro bono opportunity should consider Metro Volunteer Lawyers (MVL). In conjunction with CLS, MVL provides pro bono legal services to the Denvermetro indigent population. MVL works with attorneys who donate their time and expertise to provide direct representation, as well as unbundled services through various programs and clinics. Beyond fulfilling your desire to help others, MVL provides opportunities for networking, learning and experience. MVL clinics are predominantly in the area of family law but also assist in most civil areas of law. Visit denbar.org/mvl and check out MVL’s Facebook page to learn more. You can choose to take 12 I The Docket I October/November 2017
on an entire case with help from mentors or just give a few hours a month at a local clinic. We’ll introduce you to volunteering for MVL at a free CLE at Faegre Baker Daniels from 9 a.m. until noon on October 23. We’ll even provide a light breakfast and an ethics credit. You’ll get an overview of what MVL volunteers do, a quick primer on family law and some ethical considerations in pro bono familylaw work. You’ll also learn how pro bono work can help your career. The DBA and MVL are offering this special event for Pro Bono Week, and Faegre Baker Daniels has graciously offered to host it. If you’re interested in attending, please register on the CBA’s calendar at cobar.org/calendar. Just click on October 23, and you’ll see the event listed. The DBA Access to Justice Committee thanks you for any step up in pro bono work that you’re able to make. D
After a previous career as a computer programmer in South Carolina, Matt Pierce came to Colorado for law school at DU. He is now a law clerk for Justice William W. Hood III on the Colorado Supreme Court and a member of the Denver Access to Justice Committee. Matt and his wife, Liz, live in Littleton with their two children, Jack (3) and Eleanor (2). He can be reached at email@example.com.
Winners Curated by Jessica A. Volz
This year, we are celebrating the sixth annual Denver Lawyersâ€™ Arts and Literature Contest. The Docket Committee would like to thank all of those who participated and the professional artists and writers
who generously donated their time to critique each submission. The number of outstanding entries that we received made the judging process a particularly challenging endeavor.
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DRAWING AND PAINTING: "D I A , U n d e r t h e T e n t" Yvette L. Lewis-Molock (Assistant General Counsel, Xcel Energy)
My love for painting started when I attended a “Canvas and Wine” event with some fellow attorneys two years ago. As you might imagine, there was a lot of discussion about whether we were doing it right or getting it to look like the instructor’s painting. The instructor really got a workout with all of the questions that she had to answer. I was having so much fun. It was then that I realized that I really enjoyed creating something. All of our paintings looked different when we completed them. But that was the beauty of it: We were all on different artistic journeys. So, I started getting books and watching shows (which of course included Bob Ross) to get ideas on what I should be doing. I experimented with oils, watercolors and ultimately settled on 14 I The Docket I October/November 2017
acrylics, as they are the easiest to clean up and are more forgiving with mistakes. I have tried painting everything from landscapes to people. I used to think that every painting had to be postcard perfect, but now I look at things differently. I think about what might look good on canvas and which hues I should mix to capture a particular color. I use “artist license” to make changes. DIA, Under the Tent is a prime example. I took several photographs on the day the trains first started running from DIA to Union Station. I liked the setting, colors and abstract elements that featured prominently in one of the photos that I took and decided to try to translate that composition on canvas. I love that art offers endless possibilities and that there is always something new to learn and experience. It is easy to get so wrapped up in the day-to-day stresses and allow our careers to define us that we do not make time to do something that we enjoy. I do not get to paint as often as I would like, but when I do, it is like therapy or meditation, and the stress fades away. D
PHOTOGRAPHY: "A r a p a h o e B a s i n" Reid Neureiter (Of Counsel, Wheeler Trigg O’Donnell) I am a civil trial lawyer and have practiced law in Colorado since 1996. I have had an interest in photography, specifically sports photography, since high school. A college course in blackand-white darkroom photography reaffirmed this interest. Developments in digital photography over the past decade have made working with chemicals and physical enlargers a thing of the past, but the principles learned in the darkroom are just as applicable to the use of computer programs, such as Lightroom or Photoshop, in enhancing and editing photographs. My interest in photography has helped in my litigation practice, particularly in assessing the distorting effects of particular kinds of lenses. My enthusiasm for sports photography expanded as my three children went through Denver’s youth sports programs and then on to Denver’s high schools. I became the unofficial team photographer for Denver East’s boys’ soccer, lacrosse and rugby teams and was fortunate enough to be on the sidelines for a soccer state championship match at Dick’s Sporting Goods
Park. Our daughter played soccer and field hockey at Kent Denver and played in multiple state semifinal matches, which I had the pleasure of documenting. I also have a passion for cycling. Like skiing, cycling photography allows for images that combine beautiful landscapes with remarkable feats of athletic prowess. Using a motorcycle, I have provided rider support and photography services to the Triple By-Pass, Deer Creek Challenge and Mount Evans Hillclimb road races. One of my photographs combining cycling and skiing was used on the poster for a stage of the U.S. Pro Cycling Challenge that finished at Arapahoe Basin ski area. My winning photo for this year’s Docket Arts & Literature Contest was taken this past spring on a particularly windy day after substantial snowfall. I was at the base of A-Basin’s East Wall, which skiers access by climbing a ridge that tops out at more than 13,000 feet. The wind was blowing the snow up and over the cliffs of the wall, making for a beautiful juxtaposition with the skier in the right-hand corner. D
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FICTION: "Q u a n t u m N o v e l" Maha Kamal (Attorney, Colorado Family Law Project)
I stumbled upon the subgenre called “quantum fiction” a few years ago when I read Mark Alpert’s Final Theory. If you’re a science nerd like me, you’ll love this genre because it geeks out on all things science while providing a drama-packed story usually starring a somewhat-awkward scientist as the protagonist, terrorists as the antagonists and federal government agents as supporting characters. I also love South Asian fiction authors, including Mohsin Hamid (Mothsmoke, The Reluctant Fundamentalist), Mohammed Hanif (A Case of Exploding Mangoes) and Jhumpa Lahiri (The Namesake). My winning story was inspired by both types of fiction and reflects upon my identity as a Pakistani-American woman, as well as my interests. For me, writing is a form of healing. My quantum fiction story — the first chapter of which is featured here
— blends my memories of my family with my current love for science, political affairs and writing. I started writing the story after I discovered Lighthouse Writers Workshop in Denver and began attending their “Friday 500” writing sessions. (They are incidentally located right around the corner from my law office, so I’ve been attending pretty regularly for almost a year now.) This chapter suggests a level of estrangement between the protagonist and her mother. It’s an autobiographical note based on the fact that I was disowned by my parents at the age of 18 (during my first semester of college at the University of Colorado at Boulder). The disownment was due to pretty intense religious and cultural differences, both of which are very much intertwined in Pakistani culture. I haven’t had contact with my parents or my sister for 14 years now. There was obviously a lot of trauma involved with what I went through, and I credit a lot of therapy over the years for getting me to where I am now. (My personal experiences are also a big reason why I practice family law today.) This novel is intended to share my autobiography while also allowing me to explore my love for quantum fiction. D
"Q u a n t u m T e a c u p E n t a n g l e m e n t" A lukewarm cup of chai sits on her white kitchen counter. It’s in a cheap mug that she bought for a dollar during one of her many trips to IKEA. She mixed it with cold milk again. You told her to stop doing that long ago but she’s mostly set in her ways now. She brews black Lipton tea bags that she buys in bulk from the local grocery store. She has been buying them in bulk for over two decades now. Her addiction causes her to drink three, four, sometimes five cups of chai every day. The yellow paper pouch surrounding each tea bag brings with it a sense of home. A pouch lay ripped at the flap next to the electric tea kettle. You notice it’s also slightly crumpled. Ammi stopped boiling water on the stove a few years ago after you bought her the kettle. She isn’t entirely set in her ways. You wonder if there’s sugar in the chai already. After all these years, you still don’t know. So you risk adding a teaspoon without checking it first. You draw the plum-colored mug towards you and gently pick it up. A sip confirms that she already added a half teaspoon. It wouldn’t have been enough, so you’re safe. Ammi only puts a half teaspoon because she had a diabetes scare a year ago and cut everyone’s sugar intake in the house. She prides herself in her daily stair exercises. “I exercised every morning for three months,” she recalls. “And the diabetes went away.” You sip your tea, dismissing her innocent but faulty medical conclusions. 16 I The Docket I October/November 2017
Chai is a sipping affair. A remnant of the British colonization of the Indian subcontinent, it is nothing but black tea with milk. However, it is improper to gulp, slurp, or otherwise drink it in a rushed manner. The sipping, in part, is supposed to offset the heat of the drink. But since Ammi’s chai is lukewarm, it’s difficult to drink as the British do. Out of habit, you sip it anyway. Your Ammi is not in the kitchen. She is not in the living room. She is not on her stairs, exercising. You are unsure of where she is, but assume she must be in her bedroom praying. She knows that you don’t believe. You smile and sip your tea. You’re reminded of the joke you always tell her when she does finally appear in the kitchen, from wherever she was hiding. “Ma, if you are in another room and I can’t hear you, or see you, or touch you, are you both in that room and not in that room?” She always laughs even though she doesn’t get the reference to quantum superposition. Throwing her dubatta back around her neck, she looks at you half-seriously and replies, “I am in the room, inshallah. I do not want to be in another room.” Inshallah. God willing. God, the observer who collapses the wave functions of life into a single possibility. Years later your Ammi will cry herself to sleep at night in her old age, asking God why He willed you to never be in the same room as her again.
POETRY: "F l y i n g G r o u n d" Andrew J. Felser (Felser, P.C.) Law and poetry dwell in separate worlds. In the realm of poetry, where the law of gravity is suspended, one never needs purpose, structure, proof or precision. Poetry is meant to induce feelings instead of findings. It inhales air from the soul and exhales an elixir of ambiguity. In the world of poetry, the performance of a contract may be contingent upon “a red wheelbarrow, glazed with rain water, beside the white chickens,” as in William Carlos Williams’s “The Red Wheelbarrow.” Even a poem that is literal on the surface can be loaded with explosive symbolic power: “They send me to eat in the kitchen When company comes” (from Langston Hughes’s “I, Too”). Logic, a currency of the legal realm, has no value in the land of poetry.
By the same token, a brief that features “[t]he sound of the belch’d words of my voice loos’d to the eddies of the wind” will fail its purpose (Walt Whitman, “Song of Myself”). It is little wonder that many lawyers, who tend to be creative anyway, flee from one world to the other, to absorb or to create. Yet the same trance-like, free-associative state of mind that serves the poet so well also works for solving legal problems. A wellknown Denver judge once mused that a lawyer’s time is often better spent staring out the window thinking about a case than taking depositions. I got hooked on the visceral rewards of creative writing at an early age. Two of my favorite poets are James Dickey and Dylan Thomas. Their influence is evident in the poem published here. “Flying Ground” is an amalgam of childhood memories reawakened by the infancy of my own son who, now a teenager, offers this enthusiastic review: “Not bad.” D
"F l y i n g G r o u n d" Cast your eyes on that ridge, son, down along the county line The earth is cleaved and hoisted up on jacks for the mucking with. I do recall the leathery skin of that ground, prickly to the palm but soft to the belly of my shoe where once the wind raised high my frame and fabric and my fists bruised the air as I boxed my hopes up to the castled clouds. It was enough that day to be borne aloft on string, my father distant, leaning cross-armed like corn against the hood of a ’64 Falcon, to arch my neck with hawks in my eyes and plant myself unbroken as the high cross trembled, the tail bone hissed, and missing and correcting I raked that fossil across the sky. Now too much seems crude relentless, boy. I get tangled in cell towers, wrecked on terraced timber that primps in neighbors’ windows, die hard and quick against leaded glass like a sparrow.
The air is diabolic, static electric, fat with shouting; I’d spit it out sooner than climb it. After his flying ground was spaded, upturned and shoveled into the mouth of a shopping mall, my father told me of the cloth-winged Curtiss on the airfield by the woods, the corrugated nests where eagles yawned for the golden bug that kissed the clouds in his day. And now I hear his voice in my voice, and see my fists in all your pounding. Go now to your flying ground. Find your shapes and shadows. Quick to the breeze and light on the tops of stems, laugh toothless against the short and plentiful bees that sting your brow. Too soon the sun will make your shadow long and lean and flickering.
JUDGES: Visual Arts: Barbara A. Lewis — Art Consultant, Lewis Art Consulting; Mike McClung — Gallery Director, Michael Warren Contemporary; Amy Metier — Artist; Marianne Mitchell — Artist; Brendan Picker — Public Art Program Administrator, Denver Arts & Venues; and Kate Schuster — Colorado and Denver Bar Associations. Literature: Kaelyn Gustafson and Paul Miller — Docket Committee Co-Chairs; Jessica A. Volz — Editor, The Docket and Colorado Lawyer; author of Visuality in the Novels of Austen, Radcliffe, Edgeworth and Burney (London and New York: Anthem Press, 2017).
A special thanks goes to Colorado Attorneys for the Arts (cbca.org/colorado-attorneys-for-the-arts/) for their assistance in coordinating the judging of the art entries.
October/November 2017 I The Docket I 17
THURSDAY, OCTOBER 19 5:30 TO 7 P.M. Meier Skis 970 Yuma Street, Denver
Come support your fellow membersâ€™ creative talents at the October Barristers After Hours. This reception celebrates all entrants and the winners of the 2017 Docket Arts & Literature Contest. All are invited to attend and see and hear the winning submissions. Complimentary drinks and appetizers will be served.
RSVP TO LUNCHES@COBAR.ORG.
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FROM TRIAL LAWYER TO HISTORIAN
fter more than four decades of extensive civil trial and occasional appellate practice in Colorado, I decided to write a historical book. I craved a new adventure and needed some novelty. Because of my experience in research and writing, I thought that I could easily transition from one specialty to the other. I now realize that the differences outweigh the similarities. I made the transition in the end and am now a published historian. I had been told that I would have little chance of finding a publisher. As a trial lawyer, I had, in a way, self-published my many motions and briefs. I go back far enough to have been required to have had my first appellate briefs professionally printed and bound. I would not, however, self-publish a book. I did not want to find a cartographer, photo manager, copy editor, indexer, printer and marketer. I wanted a professional product. I was proud of my first manuscript. I thought that its merit was obvious. I found that without a submittal by an agent, the “Big Five” publishing conglomerates would not even accept a manuscript. No court had ever rejected a submittal from me. After some effort, I was fortunate to find Westholme Publishing, a well-regarded independent publisher that specializes in American history. An immediately apparent difference between my “pub-
lishing” as a trial lawyer and my publishing as a historian is compensation. My historical writing may have no monetary value. While representing defendants in civil cases, I have been paid to write, and my readers — opposing counsel, a judge or both — have been paid to read my writings, even if they turned out to be without value. Now, nobody is paying me an hourly rate to write, and nobody would pay my readers to read what I write. Receiving a percentage of the price of each book sold, I am being paid a contingency that is meager compared to a standard contingency fee agreement. I was seldom a contingent fee lawyer; now I am a contingent fee historian. The similar concern for both the trial lawyer and the historian is accurate understanding and recreation of past events. Both professionals seek facts, but the lawyer has tools that are not available to the historian: the wonderful panoply of discovery options. How great it would be to depose some long-dead malefactor to whom a crown of gold has been awarded by others! On the other hand, in its presentation, the historian is not bound by the rules of evidence. My inclusion of an exclamation point in the last paragraph prompted me to think about punctuation. Perhaps I am stodgy, but I can never remember using such a mark in any brief that I ever submitted. It seems theatrical. My thinking has been that the words and syntax that I selected would convey the necessary emphasis to the idea presented in a sentence. In these days of Trumpian hyperbole, exclamation points and adjectives that are comparable in meaning, such as “ludicrous,” “ridiculous” and “absurd,” may increasingly find their way into our characterizations of our opponents’ arguments. As a historian, I can use exclamation points sparingly. My book, The Little Lead Soldier, is about World War I. General John Pershing was the commander of the American forces. The Allied governments had assigned French General Ferdinand Foch the responsibility of coordinating the several armies that were allied, including the American, British and French. A number of serious issues arose concerning how to deploy the American troops. Pershing and Foch discussed those issues. The nature of the Pershing-Foch discussions is a disputed fact. Each general wrote a memoir, which in the parlance of the historian is a “primary source.” The memoirs differ in their descriptions of the discussions. In his memoir, Pershing tried to depict himself as a “macho,” asserting vehemently, with threats and ultimatums, his positions against an antagonistic Foch. As for Foch, he made no mention of heated discussions. As the historian, I obviously did not have the discovery arsenal to learn the truth that would then become a fact. If I had chosen to do so, I could have relied on “secondary sources” to try to ascertain the truth. Those secondary sources were mostly acclaimed historians who reported, as a fact, that Pershing strenuously argued with Foch. Instead, I decided to October/November 2017 I The Docket I 19
put forth what the generals had said in their memoirs. To trial lawyers, repeating what the generals said would be inadmissible hearsay. Uttering the opinion that Pershing forced Foch, against his will, to do as Pershing wanted would lack the foundation to be admissible. In asserting their version of the truth, historians can ignore the rules of evidence. With no rules, a “historian” can even concoct fake facts. Doing so does not create “fake news” because the fake facts are not contemporary. Much of revisionist history perpetuated by politicians is based on fabrication. The tale belongs to the teller. The check on the unscrupulous trial lawyer is the jury and the judge. Only the discerning reader can check an unscrupulous “historian.” For the trial lawyer, facts are important only if they can be fit into established legal principles, often as enunciated by jury instructions. If Pershing and Foch were jointly or severally being tried in a civil action for negligently causing the massacre of American soldiers in battles in the Argonne forest in the closing days of the war, the adjudicator would know what standard of conduct to apply to the facts. It would be whether either or both generals acted as a reasonably careful person would act under the same or similar circumstances.
A trial lawyer would probably not need to research the well-known legal precepts governing negligence. Other legal questions, such as standing, jurisdiction and immunity, would require research. Historians do not need to do such research. If historians choose to evaluate the actions of their subjects, they can judge those actions by whatever standard of conduct they select. That standard could be a generally accepted legal, moral or religious code. It could also be a standard that a historian self-derives. The historian can also choose to only state facts and leave the judging to the reader, applying a standard of the reader’s selection. I started out trying to be non-judgmental, but I found that the way that I stated facts showed bias. I was applying standard legal principles, those same principles that I had been applying through all the years of my legal practice. I consider Pershing, Foch, the other generals and politicians, including those on the other side, to have been negligent in causing the death of their soldiers, even to the extent that punitive damages could have been awarded against them. Another historian and any reader may look at the same facts
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and apply a different standard of conduct. For example, British General Douglas Haig expressed the view that “[w]e lament too much over death.” He also counted success by the large number of his troops killed in a battle. That meant that the other side must have lost as many. To some historians, but not many, Haig was a successful general. The historian and the reader have the luxury of selecting the standard for evaluation; the trial attorney, meanwhile, is bound by law. I have made the point that the writings of historians can be unreliable. Although perhaps important, they are also, in some respects, useless. It makes no present difference whether the discussions between Pershing and Foch were heated, or if one or both were negligent, or that Haig thought that death was unimportant. In contrast, the work and writings of the trial lawyer are crucial to the involved individuals and to a system based on applying proven facts to established law. The remuneration is small and not commensurate with the time and effort spent in researching and writing a historical work. Nonetheless, I am curious about the past, and it is interesting and fun to write about it. Curiosity and interest are their own rewards. Sharing with others what is discovered is a bonus. Being a trial lawyer is an honor, carries responsibility and is important. Becoming a historian is a great adventure. To think otherwise is ludicrous, ridiculous and absurd! (Emphasis intended.) D Hugh D. Wise III, a sole practitioner in Aspen, has been a Colorado civil trial and appellate lawyer since 1969. He is a Princeton University graduate and earned his law degree at the University of Pennsylvania. He was certified as a civil trial specialist by the National Board of Trial Advocacy. He served as a long-time member of the Colorado Supreme Court Civil Rules Committee and the Colorado Supreme Court Committee on Civil Jury Instructions. His first book, The Little Lead Soldier, is available in bookstores and online. He can be reached at wise@sopris. net.
10 QUESTIONS WITH NEW BOARD OF TRUSTEES MEMBER J. RYANN PEYTON it is a challenge I continue to work to overcome. I could have chosen a career more suitable for people who struggle to talk to other people. Instead, I chose a profession based on human interaction. I chose to be a litigator, and I chose to allow myself the opportunity to be a leader within the legal profession. These choices have certainly come with the panic attacks, frustration and general “what did I get myself into?” thoughts one might expect; but at the end of the day, I am a stronger and more fulfilled person than I would be if I had chosen to take the easy road. 6. What’s the best advice you’ve ever been given? There are two pieces of advice that I try to incorporate into my life: “Work hard in silence. Let success be your noise.” “Every pizza is a personal pizza if you try hard enough and believe in yourself.” 7. What are your hobbies outside of the law? With a five-year-old son at home, my free time is limited. But on most weekends, you can find me skiing, fly fishing or paddling.
1. What are five adjectives that you would ascribe to yourself? Tenacious. Collaborative. Innovative. Thoughtful. Resilient. 2. Why did you become a lawyer? I thought it would help me become an FBI agent. 3. What has been your favorite DBA event and why? I love the Barristers Benefit Ball because I get to see my very buttoned-up colleagues let loose on the dance floor! I also enjoy celebrating the imperative work of MVL. 4. Why did you want to lead the Colorado Attorney Mentoring Program (CAMP)? My approach to being a lawyer has always encompassed not only the practice of law but also the duty to take care of the profession. I spent the first eight years of my career focusing solely on the “practice” part of lawyering. I wanted an opportunity to focus my time and efforts on taking care of the profession. Leading the CAMP program has provided me with a means of improving the practice and the profession of law in Colorado while paying it forward to the next generation of young lawyers who want nothing more than to find success in practice. 5. What has been one of the biggest challenges that you have had to overcome? I have struggled most of my life with social anxiety disorder, and
8. If you could have dinner with any historical figure, with whom would it be and why? John F. Kennedy. I am fascinated by his ability to lead and inspire. I’d love to learn how to generate a collective vision and empower people to see their role in achieving that vision the way he motivated people to take responsibility for creating a better America. I’d also like to know whether he would have still chosen the office of president if he knew how everything would end. I’d ask him if the opportunity to do good at the highest level was worth the sacrifice. 9. If you could change anything about Denver, what would it be? Water. I grew up in the “Land of 10,000 Lakes,” and I sometimes miss lake life. 10. If you weren’t a lawyer, you’d be: A ski bum. D Hometown: Minneapolis, Minnesota. Lives in: Denver. Lives with: My wife, Sara, our son, Archer, and our English bulldog, Doobie. Works at: Colorado Attorney Mentoring Program (CAMP). Practices in: Doesn’t practice anymore but previously practiced in family law and civil rights. Law school: University of St. Thomas School of Law.
EDITOR’S NOTE: Do you know a DBA member who should be featured? Email nominations to Jessica Volz at firstname.lastname@example.org. October/November 2017 I The Docket I 21
By Emily Korson hether you are perfecting a long-held skill or acquiring a new one, the benefits of artistic activities are physical, emotional and spiritual. Making and experiencing art are some of the surest ways to connect with our basic humanity. Lawyers are no exception to this rule. Art has the power to change human consciousness and, in turn, transform a community. Last summer, I became a co-founder of ReCreative Denver (recreativedenver.org). Four years ago, I co-founded its sister organization, Seattle ReCreative. The mission of these organizations is to cultivate creativity, community and environmental stewardship through creative reuse and arts education. Creative reuse centers are facilities that collect donated materials that would otherwise end up in a landfill and redistribute them to the community. While the size, structure and community benefit of creative reuse centers varies, creative reuse centers function to reduce the amount of usable material entering the waste stream, provide communities with low-cost access to creative materials and stimulate creative activity within the communities that they serve. This past December, we opened our 8,000-square-foot facility in the heart of Denverâ€™s Santa Fe Art District. Our facility currently serves as a reuse store, classroom, art gallery, event space, member-run carpentry workshop and private studio space for 12 working artists. In our storefront space, we operate a thrift shop for donated arts and crafts supplies and use the proceeds to offset the cost of our low-cost arts programming for adults and 22 I The Docket I October/November 2017
children. We frequently donate our facilities and materials to deserving community groups. In our gallery, we hang monthly exhibitions and host musical performances, lectures and private events. We are also improving our multiple community makerspaces, which provide children and adults with access to equipment, workspace and expertise that arenâ€™t available to them at home or at school.
This work is fun. I love what we do but frequently not for the reasons one might think. Every First Friday, I have the privilege of running the register in our reuse store during our monthly art walk. On that night in August, I sold nearly 800 items, ranging from handfuls of beads, paints, castaway sculptures, fabric, corks and miniatures to vintage photographs. Nearly every one of our 190 customers told me how theyâ€™d use their unplanned purchase and expressed enthusiasm for our endeavor. The odd little figurine or ball of yarn that customers buy is often not so much an ingredient for a project but a souvenir from the time they spent in our facility. On average days, we have many low-income regu-
lars who drop by in search of the inspiration, advice, connection and affordable goods they aren’t finding elsewhere on our block. This unanticipated opportunity to provide social support and a sense of belonging for the most marginalized members of our community is what I have come to love most about what we do at ReCreative. The activities that occur in this place enable us to be our best and quirkiest selves. It’s impossible for me to quantify the value of instilling a sense of self-worth in another person by fostering their creative work. And as we enter an era where the federal government seeks to reduce protections and services for the indigent (including legal aid), the arts and the environment, I feel this work is more important now than ever. By providing inclusive arts education, enrichment and access in our community center, we are working for the rights of all people to be treated with dignity and respect. We are standing up for those who have been marginalized by ensuring that everyone who enters ReCreative Denver feels valued and respected for all that makes them unique. During our first eight months here in the Art District on Santa Fe, we’ve served 2,500 customers and hosted events attended by approximately 5,000 people while diverting over 20,000 pounds of creative materials from area landfills for the purpose of reuse. We feel great about our progress thus far, but with the help of many, I know we can do much, much more. If our Creative Spaces fundraising campaign this summer is a success, we project that we can serve as many as 5,000 artists, including a diversity of low- and moderate-income families, from throughout the Denver area. Fully realized, we hope to see ReCreative Denver become
an anchor institution for artistic and environmental education in the city of Denver for years to come, producing a generation of more active, engaged, sustainable and self-sufficient citizens here in Colorado. However, there are many moving parts, and in order to continue to serve the diverse needs of our community, we need all the help we can get. You can support us by donating your unwanted arts and crafts supplies, enrolling in a class, volunteering your time, attending one of our exhibitions or events, renting studio or event space, or simply shopping here. Regardless of the trials of your professional life, make a little time for art each and every day. D Emily Korson is an artist, art educator and co-founder of Seattle ReCreative and ReCreative Denver. A Colorado native, Korson recently returned to Denver after many adventures in Seattle, Brooklyn, Boston, San Francisco and Portland. She holds a B.A. in studio art from Reed College, an advanced certificate in art and design education from Pratt Institute, and an M.F.A. in painting and drawing from the San Francisco Art Institute. She can be reached at email@example.com.
MONDAY, OCT. 30 4 TO 6:30 P.M.
Limelight Supper Club & Lounge 1335 Curtis St., Denver (across from Boettcher Concert Hall in the Performing Arts Complex)
TO THE BAR RECEPTION
The Colorado legal community would like to celebrate those who have just been sworn in to practice law. Everyone, including family and friends, is invited to attend a complimentary post-swearing in reception immediately following the Oct. 30 attorney admission ceremony. RSVP not required but encouraged. Please RSVP by emailing firstname.lastname@example.org.
October/November 2017 I The Docket I 23
TO AVVO OR NOT TO AVVO? (A Reasonable Marketing Question)
By Docket Committee Co-Chair Paul Miller pproximately 10 years ago, Avvo launched its lawyer ranking system and legal information database. This has caused some dismay in the legal community. Many attorneys don’t like Avvo for a handful of reasons: They never signed up for Avvo, yet they’re on the site; the ranking system is spurious; Avvo salespeople keep calling; and it’s just another thing they have to keep up with. These are just some of the complaints I’ve heard. Avvo has successfully defended its business practices multiple times using arguments based upon free speech. Like it or not, Avvo is here to stay. This article is not written to extol the virtues or to excoriate the vices of Avvo but rather to address two questions: Is Avvo a viable marketing tool for your practice? If so, how can you strategically increase your rating using the Avvo ranking system? To help answer the second question, I offer a guide based on my findings and personal experience with building an Avvo presence. By the pricking of my thumbs,/Something Avvo this way comes. 24 I The Docket I October/November 2017
Whether or not you should decide to delve into the world of Avvo depends on where your clients come from. In other words, do your clients use the Internet to 1) find you or your firm or 2) research you or your firm based on a referral recommendation before they call for an initial meeting? If you’re a government employee, work as an associate or partner in a large firm, have an established boutique or niche firm, or are well established, then registering your Avvo profile is probably not worth your time or effort. You can stop reading and turn to something less mindboggling. If you’ve had disciplinary proceedings against you, seriously weigh the pros and cons of claiming your profile. If you’re a sole practitioner, work in a small to mid-sized firm, or practice in the areas of personal injury, criminal or family law, you should seriously consider claiming your Avvo profile. Due to the ubiquity of Avvo results in search engine queries, it’s a best marketing practice to control your online presence. For instance, your Avvo rating may appear when someone Googles you. For better or worse, the public uses Avvo as an easily accessible resource. How you present yourself through this platform is therefore a matter of importance.
Avvo Ranking: The Short and the Long of It. My journey with Avvo began a few years ago when a friend found me on the site and told me that I had a 6.5 rating. I didn’t even know what that meant, but it didn’t sound good, so I visited the site and was surprised to see my full legal name with a rating and the descriptive word “fair” inscribed next to it. I am fair, in regards to honesty, my fees and playing by the rules; however, I am not fair in the sense of being a “less-than-adequate” lawyer. Mildly put, I was a little upset that Avvo had given me this arbitrary and capricious ranking and made sure to feature it prominently on the World Wide Web. I had three choices: Ignore (never the best option); fight (as others have done to no avail); or play their game (as they like it). I took it as a challenge to solve the Avvo puzzle and learn as much as I could about how the rating system works. Because its ranking system is proprietary, I don’t have the magic formula. Nonetheless, I have been able to demystify some key factors. Avvo looks for and gives you a ranking based on your contributions and leadership in the legal community, as well as the way in which you are regarded among your legal peers. According to Avvo, “The Avvo Rating is calculated using a mathematical algorithm that evaluates the information in your profile. If it’s not in your profile, then we don’t know about it, and if we don’t know about it, then we can’t give you credit for it. Adding relevant information (the more current, the better) to your profile can translate into points toward your rating.”
The Avvo ranking system is defined as follows: 10–9.0 = superb; 8.9–8.0 = excellent; 7.9–7.0 = good; 6.9–6.0 = fair, 5.9– 5.0 = average; rankings of less than 5.0 = metaphorical red flag denoting concern and caution.
Your goal should be to have a minimum Avvo ranking of 8.0 for a couple of reasons. First and foremost, an 8.0 ranking will give you a four-out-of-five-star rating in Google search results. As a general rule, people will not purchase goods or services unless those goods and services have at least a 3.5 star rating. It’s amazing how the Internet has trained us to behave this way. Secondly, your clients or prospective clients will want you to have an excellent rating. They’re not going to hire a “good” lawyer; they want an “excellent” lawyer. Choose the path of least resistance that will get you to that magic number. Make it a marketing goal to do something that will improve your Avvo score by at least .1 every month. Before you know it, you’ll be at your objective.
Below is my list of what you need to do to improve your Avvo presence and ranking: 1. Claim your profile. This will give you a base starting score of at least 5.9 or more, depending on how many years you’ve been licensed. 2. Fill out your profile completely. Look at several attorneys’ profiles whose practices are similar to yours to give you some idea of what to include. Don’t forget practice areas and employment; this will help the public better understand your firm and what you specialize in. 3. Get endorsements from fellow attorneys. An endorsement from a fellow attorney can improve your ranking by as much as .3. Ask friends and colleagues to endorse you. Reciprocating endorsements are usually .1 less than the original endorsement. After your rank improves by 1.2, you’ll start receiving .1 for every two attorney endorsements. After an estimated 15 endorsements, you’ll cap out, and your rank will not increase. 4. Add law-related awards. Regardless of the award’s credibility, Avvo highly favors legal awards, including SuperLawyer, Rising Star and Martindale-Hubble. Law-related awards have greater weight than other awards. 5. Add speaking engagements. Speaking in front of groups will improve your ranking. Once again, Avvo favors talks or seminars that are sponsored by the legal community. You must include a URL address of the engagement to receive credit. 6. Add associations. List your membership in any associations to which you belong. Your ranking will increase if you take on a leadership role in that organization. Law-related associations receive more weight than unrelated ones. 7. Add publications. If you’ve written articles, include them. You must include a link to the online version of the article. They should be published in a legal journal or newsletter. After approximately six in the same publication, you will cap out and stop receiving an improvement to your ranking. 8. Add case outcomes. If you have a published case, add it. If not, list cases that will showcase the types of cases that you handle and the results you have achieved for your clients. Published cases will improve your ranking. 9. Adding an LLM. I have heard — but cannot verify — that adding an LLM will improve your rank by .4. These items will not help your ranking: • Client reviews have no impact on your ranking. It’s good to have them since it will improve your search results within the Avvo website. For instance, if two attorneys have an 8.8 ranking, the attorney with more five-star reviews will be ranked higher. If you get a review that is less than five stars. October/November 2017 I The Docket I 25
It will bring your Avvo site search results below those with a lower Avvo ranking. Additionally, if you have a high Avvo ranking but your client reviews are less than five stars, prospective clients are less likely to contact you. • Answering questions on Avvo will not improve your ranking. Answering questions is like giving free legal advice. It helps Avvo but doesn’t help you. In addition, I’ve seen where it has backfired on attorneys who have given responses to someone who in turn relies on that advice, only to encounter unfavorable results. That person gives the attorney a one-star client review. Ouch! • Submitting legal guides on Avvo will not improve your ranking. If you must post on Avvo, this is the best way to go. At the end of your post, include a disclaimer, as well as a link to your website where the mirror of the article is located. This will improve your Google listing. • Finally, paying to advertise on Avvo and adding the Avvo badge on your website, will not improve your ranking.
ity and perseverance — to name a few. As a result, I don’t publicize my ranking, since I’m not really sure what it means, and I don’t want to be disingenuous to myself and my clients. My profile on Avvo is something that I didn’t choose to do; rather, it was something I reluctantly agreed to do. I hope if you decide to claim your Avvo profile, you’ll use some of the tips and tricks above to get your ranking to at least 8.0. Although I have a 10 ranking on Avvo, I never received a “10” client from them. On the contrary, prospective clients who find me using the site are somewhat middling. Experiences with Avvo are bound to vary. I’ll let you be the judge! (My sincerest apologies to the Bard of Avon.) D
Paul Miller is a sole practitioner whose firm specializes in estate planning, estate administration and business law. He can be reached at email@example.com.
This above all: To thine own practice be true. A superb ranking on Avvo doesn’t make you a superb lawyer. In my opinion, it means you conformed to the website’s requirements superbly. There are many things that make a great attorney that aren’t included in the Avvo profile, such as empathy, creativ-
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26 I The Docket I October/November 2017
orty-year-old Josh Brown was a Navy veteran and successful Internet business owner. He lived life on the cutting edge of new technology and loved his new 2015 Tesla Model S so much that he nicknamed it “Tessy.” He even posted videos on social media showing it “driving itself.” You see, his Tesla wasn’t just any shiny new car. It was equipped with autonomous-driving software and control elements that Tesla called “Autopilot.” That was likely the main reason why Josh bought the Model S. On May 7, 2016, Josh Brown
died in his beloved Model S. As he zoomed down a Florida highway on Autopilot at a speed he set (74 mph, or 9 mph over the posted 65 mph speed limit), his Tesla failed to “see” a semi-tractor trailer turning left in front of it. Witnesses reported that the Tesla never braked as it drove under the semi (shearing the roof off) and then plowing into a utility pole on the side of the highway. Brown never made any effort to take control from Autopilot, despite having seven seconds to do so.
October/November 2017 I The Docket I 27
This (and several other accidents involving Teslas with Autopilot) have not slowed the development of autonomous cars. According to Tesla, all of its current models now have “the hardware needed for full self-driving capability at a safety level substantially greater than that of a human driver.” Tesla claims its cars will be able to “see through fog, heavy rain, dust and even the vehicle ahead.” But despite these confident claims, Tesla has also said it will not enable this full array of self-driving power while “validation is completed, subject to regulatory approval.” Ready or not, “driverless” or autonomous vehicles are already here. And not just cars, either. Major semi-tractor manufacturers are in the final stages of development of fully autonomous semitractor trailer units, some of which are already in use in Europe.
At the moment, all of the “autonomous” vehicles on the road still have functional steering wheels and control pedals, ready for the drivers to “take over” if the software goes awry. But the day may be fast approaching when those controls go away. Google’s autonomous vehicle design (still in prototype testing) has no pedals, steering wheels or other accessible vehicle controls. Google is adamantly against such controls, contending they would make the vehicles more dangerous. Despite promises that these vehicles will be “safer than anything driven by humans,” we know that accidents are inevitable, for a lot of reasons. When that happens, whom will lawyers sue? Technology is fast outpacing the law. As regulators scramble to overhaul decades of traffic and consumer safety law, insurers are also racing to get a handle on this new technology before it overwhelms their current underwriting models. The Brave New World of autonomous vehicles promises to be highly disruptive to auto makers, state and local governments, and the auto insurance industry. Semi-autonomous technologies are already impacting civil and criminal litigation. This is only the beginning. How will you advise clients on these issues in the months and years to come? What will you do when your next new car can “drive itself?” First, don’t make any plans to go without insurance. State insurance requirements aren’t going anywhere for many years. For decades to come, there will be a dangerous mix of autonomous, semi-autonomous and “dumb” vehicles, all sharing the road chaotically. At least as long as your car still has a steering wheel, if you are behind it when it gets into a collision, you will be sued. But what if you don’t own the car? What if the car doesn’t even have a steering wheel? Uber’s and Google’s plans call for autonomous cars functioning as a sort of intelligent “hive,” available on demand to subscribers. In their model, users will pay a subscription fee, then pay for each use. Tesla is contemplating a similar sharing service, with an interesting twist: Tesla owners 28 I The Docket I October/November 2017
will be able to share the cars with “Tesla Network” subscribers. Tesla would pay the vehicle owner a fee for this arrangement, helping them defray the cost of ownership. When they aren’t using their car, they will “lend” it to Tesla via an owner’s app. Subscribers will simply open the subscriber app, tap the button and the nearest “online” car will roll up, already programmed with their destination. Occupants will just sit down, relax and leave the driving to the software, firmware and hardware packed into the pod they’re riding in. What happens if that relaxing ride is interrupted by a wreck? The insurance issues in that scenario are even more complicated than the “owned vehicle” case. Will Google, Uber or Tesla have to insure the owners who “lease back” their cars as part of the deal? Are personal auto insurers ready for insureds who “lend” their cars (for a fee) to hundreds of anonymous Tesla subscribers? Will the owners need commercial auto liability insurance, too? Will owners be sued individually if one of their Teslas is involved in a crash during a Denver blizzard while they’re lounging on the beach in Waikiki? If I were to venture answers now, they would be, in order, “yes, no, yes and … yes.” Some manufacturers have promised to “stand behind” their vehicles if involved in accidents (Volvo being one such manufacturer, and Tesla may shortly follow suit). Well, fine. But that promise is, like everything else in the law, subject to proof. Therein
lies what will surely be years of complex legal wrangling, as the tort system struggles to grasp this new reality. This will be an even bigger tectonic shift in transportation than when horse-drawn buggies gave way to Model Ts. I fall into the camp that believes current law is deeply insufficient for this disruptive future. In the other camp reside commentators who believe that any accident “caused” by an autonomous vehicle should simply be treated as a product liability suit. Problem solved, right? After all, what could be simpler than proving a product “defect” when your Tesla swerves you into a tree because it mistook a shadow for a swerving vehicle? Sure, piece of cake. In truth, few legal theories are as difficult or costly to prove as a product defect or failure to warn. It is even harder when it comes to software, firmware, control hardware, cameras, radar, sonar or similar high-tech equipment. Untangling why your Google car wrapped its front end around a tree will require high-priced experts in fields ranging from engineering to software design, to network architecture, firmware, biomechanics, human factors, meteorology and accident reconstruction, just for starters. If these cases are to be litigated as product cases against some of the world’s richest corporations, how many potentially deserving plaintiffs will be able to afford the fight? But wait — it gets even more interesting. The situation on the road will likely be even more chaotic and dangerous than it currently is for the foreseeable future. These “smart” vehicles will all
compete for space in traffic occupied by not-so-“smart” human drivers piloting various degrees of “dumb” cars. Pedestrians and cyclists are not going away anytime soon, either. Vehicle owners who “lease back” their cars to Google or Tesla will also be on the line. How did they maintain the vehicle? Did they timely process all of the software updates and firmware pushes and backcheck for accuracy? Can they prove that? The simplest fender-bender would be transformed into a complex battle royale against some of the largest corporations in the world that happen to be equipped with bottomless funds to defend their products against what to them would be existentially ruinous product liability exposure. As an attorney who practices in the personal injury defense arena, I’m excited at the prospect for future job security as wellheeled autonomous car manufacturers have to staff up to defend the thousands of new product liability suits they’ll find themselves in. As the law struggles to catch up with the technology, it will be us lawyers leading the way. But we need to get ready for this fast-approaching future now. Some commentators are calling for new ideas, or even entirely new legal systems, to deal with this. All would require extensive changes to state and federal insurance and auto liability law. One model being proposed is a form of scheduled coverage, paid for by the manufacturers themselves, that would “go with the vehicle” and cover accidents with defined benefits to occupants and even third parties, with legal liability protection only as a fall-back if the third party rejects the scheduled benefits. Another model is a more conventional form of broadform “accident insurance” that subscribers and owners could purchase through Google, Uber or Tesla. This model fits into existing insurance and liability laws, for the most part. If they are in an accident, subscribers (and owners) would receive a combination of medical and liability protection according to the coverage level they purchased. There are still other insurance and dispute-resolution or claims schemes being developed and debated across the automotive and insurance industries and within various state and federal regulatory agencies. Like the “product liability” model, all of these proposals are riddled with minefields and destined for decades of law-shaping litigation. The best we can hope for is that legislatures, manufacturers and interest groups all get together to formulate better ways to get these disputes fairly and speedily resolved. Yeah, I’m not holding my breath for that either. D
Doug McQuiston has specialized in civil litigation, complex tort, professional liability and insurance law for more than 35 years. He is a member, contributing writer and past chair of the Docket Committee. He can be reached at firstname.lastname@example.org.
October/November 2017 I The Docket I 29
COLAP Wellness Corner
Barbara Ezyk, executive director of the Colorado Lawyer Assistance Program, is the coordinating editor of this series of wellness articles during 2017. Readers are encouraged to send authors and Ezyk their feedback. If you would like to suggest a topic or contribute a wellness article, contact Ezyk at email@example.com. he legal profession has reached a tipping point, and the jury is in: Judges, lawyers and law students are suffering and need 30 I The Docket I October/November 2017
help. In the legal profession, practitioners often see themselves as invincible “supermen” and “superwomen.” But we aren’t invincible, and the culture in which we practice is becoming toxic to the point where we are more depressed and more prone to anxiety and stress than the clients whom we profess to help.
The Disconnect in the Practice of Law: A Noble Calling and a Toxic Professional Culture The practice of law is about helping others. Attorneys are known as counselors because they advise others how to “fix” the situation in which they find themselves. Often, this focus on others’ problems causes us to neglect self-care. And, in the midst of external demands on our energy and time, we encounter difficult personalities that add to our stress, particularly when the adversarial process is a prized component of the profession. That adversarial process frequently becomes an excuse to allow belligerent and unprofessional behavior among many attorneys (and even judges) that leads to a type of institutional bullying. Research suggests that “lawyers … [are] more likely than other professionals to be exposed to toxic behavior in the workplace including verbal abuse, mistreatment, bullying, competition, and destabilization from colleagues as well as sexual harassment.”¹ Yet another contributing factor to what makes the practice of law so stressful is a personality trait that most lawyers share: perfectionism. Law is a highly detail-oriented profession, and that lends itself to the need for perfectionism. This trait is a double-edged sword: It contributes to lawyer success, but research also shows that perfectionism interferes with successful relationships and personal well-being — in addition to increasing rates of depression, anxiety and suicide.2 The conversation about diminished lawyer well-being is not new. Recent headlines in the press include articles such as “The Lawyer, the Addict,” published in The New York Times last July, describing a Silicon Valley lawyer’s struggle with a demanding practice, drug use and his eventual suicide. In an earlier example from 2014, CNN’s Marie Arce asked, “Why Are Lawyers Killing Themselves?”³ In 2016, the American Bar Association Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation (ABA/Hazelden) published their research showing that lawyers suffer from extraordinarily high rates of chronic stress, anxiety, depression and substance abuse disorders.⁴ Other research points to high rates of suicide, compassion fatigue, secondary trauma and burnout among legal professionals. Law students are not immune to these problems either. The “Survey of Law Student Well-Being,” released in 2016, revealed similar problems among students.⁵ A particularly disturbing finding was that many law students believe that seeking assistance would threaten their bar admission. They consequently rank this perception as high among the factors that discourage them from getting help.⁶ Rather than feeling encouraged and supported by the legal community and its culture, many law school students enter the profession with untreated problems. While these problems may, at a minimum, negatively impact their ability to practice law competently, they often go untreated because students fear not being able to enter the profession at all. Sadly, these trends transcend the boundary between law school and law practice.⁷ The ABA/Hazelden study that investigated lawyer mental health and substance abuse disorders found that more than a quarter of lawyers surveyed struggle with depression, and 36 percent of those surveyed showed signs
of possible alcohol abuse, dependence or hazardous drinking.8 The most common reasons why attorneys do not seek assistance for their mental health and substance abuse issues relate to confidentiality concerns.9 Pursuing Positive Change in the Practice of Law How are we, as a community, going to change these disturbing statistics? Fortunately, there are immediate actions that we can take. In today’s world, we often race around with too much on our to-do list to speak meaningfully with our colleagues. Slow down and communicate with those around you. And, rather than ignore the warning signs that someone you know or see in court or at your firm isn’t doing well, ask how they are doing. Cultivate an environment of mutual respect and professionalism in your practice. Contact the Colorado Lawyer Assistance Program (COLAP) and inquire about the confidential resources that are available to you and your peers. Invite presenters to come into your law firm, your local or specialty bar association, or courtroom to speak about how to mitigate stress in the workplace. Create an environment that encourages rather than stigmatizes self-care and thoughtfulness. Too many of us have stories of a lawyer, friend or colleague who has suffered due to an untreated mental health or substance abuse disorder, and many of those stories feature devastating consequences. We cannot treat these issues as simply part-andparcel of a grueling profession and move on to the next issue. Client service and public trust in the legal profession require us to act and set the right example. The Path to Lawyer Well-Being: Practical Recommendations for Positive Change To address the need for broad-scale change in the legal culture, the National Task Force on Lawyer Well-Being convened in August 2016. Co-chaired by James Coyle, Attorney Regulation Counsel for the Colorado Supreme Court, along with Bree Buchanan, director of the Texas Lawyers Assistance Program, the task force assembled recommendations for all stakeholders in the legal community and issued a report with those recommendations on August 14, 2017. The report, titled “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change,” discusses the crisis of lawyer mental health and substance abuse disorders and proposes ways to act, with the recognition that even small, incremental steps can collectively catalyze large-scale change. (This report can be downloaded at americanbar.org/content/dam/ aba/administrative/professional_responsibility/lawyer_well_ being_report_final.authcheckdam.pdf.) At a time when the legal profession risks a dwindling market due to the need for more accessible, affordable alternatives to legal assistance, this new report says that the time to act is now. Lawyers may not be known to readily embrace change, but in this case, a concerted effort on all of our parts is needed to create a cultural shift. For example, a judge might be the first to notice if a lawyer in her courtroom is showing signs that they are stressed or overwhelmed. Alternatively, a colleague might notice that a lawyer friend is drinking heavily at meetings, happy hours or even conferences. The report October/November 2017 I The Docket I 31
conferences. The report notes that the right intervention can “save a law practice or a life,” and that concept applies across all sectors of the profession. If a judge or colleague is not comfortable asking the lawyer how he or she is doing, they can call COLAP for confidential help regarding how to approach the lawyer or have COLAP reach out to the lawyer directly and confidentially. The report similarly directs its 44 different recommendations to all of the various stakeholders in the legal community, including law firms and other employers, judges, law schools, bar associations, regulators, professional liability carriers, and, of course, all lawyers. Reoccurring themes include: 1. All of us have a role to play in changing the toxicity that currently exists in the legal profession. 2. We must eliminate the stigma associated with seeking help or assistance for issues that cause lawyers to suffer. Our colleagues and peers should have support in getting the help they might need and not fear adverse professional consequences. More immediately, if you need help, you should not be anxious about seeking help out of fear of repercussions. 3. Because well-being directly impacts a lawyer’s duty of competence, we must increase education and understanding of well-being issues, such as stress management. One cannot possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation while being run down by a substance abuse disorder or untreated mental health condition. 4. We must all support the expansion of well-being related educational outreach and programming. Educational outreach and programming can help lawyers identify appropriate interventions and understand why taking care of themselves is not a fad but a vital part of their ability to survive and thrive in a demanding profession. 5. It’s all about changing the tone of the profession, one small step at a time. As mentioned, the report contains a multitude of recommendations, any of which, if implemented in a courtroom, law firm, a law school or regulatory office, can lead to sustainable positive change. The adversarial, perfectionistic, competitive, detail-oriented, fast-paced and high-stress nature of the law does not foster a healthy environment. Research shows that this toxic environment drives many of us to consume psychoactive substances (e.g., alcohol, cocaine, heroin, etc.) in order to cope. This environment disrupts our personal lives and relationships, and it contributes to making us feel anxious, overwhelmed, stressed and depressed. It is time to change this. Conclusion We encourage all lawyers to read the report, and we advocate that leaders in the profession review the recommendations and determine which ones they can realistically implement. Whether that involves forming a well-being committee in a law firm, inviting COLAP to provide a CLE on well-being and stress mitigation at the organization, or simply choosing to prioritize collegiality, small steps will make a difference. D
32 I The Docket I October/November 2017
Jonathan White is a staff attorney at the Office of Attorney Regulation Counsel. He assists the office with a number of policy-related projects, including the National Task Force on Lawyer Well-Being, co-chaired by Attorney Regulation Counsel James Coyle. He is also the day-to-day project manager for the office’s proactive law practice self-assessment initiative. He can be reached at firstname.lastname@example.org. Sarah Myers, J.D., L.M.F.T., L.A.C., is the clinical director for the Colorado Lawyer Assistance Program (COLAP) and can be reached at smyers@coloradolap. org. COLAP provides free and confidential services for judges, lawyers and law students. If you need resources for any issue that is compromising your ability to be a productive member of the legal community (including your well-being), or if there is someone you are concerned about, contact COLAP at 303- 986-3345. For more information, visit coloradolap.org.
1. Papadakis, “Lawyers Have Lowest Health and Wellbeing of All Professionals, Study Finds,” Financial Review (Nov. 20, 2015), afr. com/leadership/lawyers-have-lowest-health-and-wellbeing-ofall-professionals-study-finds-20151117-gl1h72. 2. Dahl, “The Alarming New Research on Perfectionism,” New York Magazine (Sept. 20, 2014), nymag.com/scienceofus/2014/09/ alarming-new-research-on-perfectionism.html. 3. Zimmerman, “The Lawyer, the Addict,” The New York Times (July 15, 2017), nytimes.com/2017/07/15/business/lawyers-addictionmental-health.html; Flores and Arce, “Why Are Lawyers Killing Themselves?” cnn.com, Jan. 20, 2014, cnn.com/2014/01/19/us/ lawyer-suicides/. 4. Krill et al., “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” 10 Journal of Addiction Medicine, 46–52 (2016). 5. Organ et al., “Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns,” 66 Journal of Legal Education, 116 (2016). 6. Organ et al., “Helping Law Students Get the Help They Need: An Analysis of Data Regarding Law Students’ Reluctance to Seek Help and Policy Recommendations for a Variety of Stakeholders,” 84 The Bar Examiner, 9 (2015). 7. Krill et al., supra note 4. 8. Id. at 48, 51. 9. Id. at 50.
THE HATE CRIMES EDUCATION TASK FORCE
s he left his home Friday morning, local math teacher Dr. Mohamed Mustafa discovered an unloaded replica assault rifle next to his garage door below a red spray-painted message that read “Muslim Terrorists Go Home.” Dr. Mustafa is a distinguished scholar who has dedicated his teaching career to propelling talented high school students in the study of mathematics, personally funding a $5,000 scholarship to his top students each year. He received his bachelor’s, master’s and doctorate degrees from Harvard. Dr. Mustafa’s students highly regard him and he them. The troubling discovery caused Dr. Mustafa to lock himself inside his home and phone local authorities. Detectives eventually detained one of Dr. Mustafa’s students who is alleged to have carried out these crimes after learning that he did not receive Dr. Mustafa’s coveted mathematics scholarship. The district attorney has indicated she intends to charge the young man under Colorado’s Bias-Motivated Crimes Statute, more commonly referred to as the “Hate Crimes Law.” The above narrative likely stirs tension in a national atmosphere already taut with political and social tension. Fortunately, the above is just simply that — a fictional narrative. But, just as every Law and Order episode reminds its faithful viewers, “The following story is fictional and does not depict any actual person or event,” its core is resplendent with factual biases that are unfortunately all too real. The reality of these occurrences led members of the Colorado Lawyers Committee (CLC) to create the Hate Crimes Education Task Force. The CLC started in 1978 and is a group of more than 60 Colorado law firms committed to improving conditions for children and the underprivileged by donating their time and money to give free legal work to groups of people. Volunteers use various methods to accomplish their goals: They advocate and try to persuade lawmakers to change laws; they negotiate with opponents; they educate students and adults; and they even file lawsuits when necessary. All of the volunteers do this for free because they believe very strongly in improving
Colorado and its communities. The CLC formed the “Hate Crimes, Youth Decide” program following a period of particularly troubling turmoil in Colorado. In 1992, during Martin Luther King Day observances, violent protests erupted as police clashed with Ku Klux Klan demonstrators on the state capitol steps. A few months later, lawyers of the CLC created the fictional trial program. The above narrative represents a snippet of the complex case presented to junior high, high school, college students and community groups across Colorado. Throughout the program, lawyers volunteer to play the parts of prosecutor, defense attorney and judge. The students play the role of the jury. Aside from educating them on the Hate Crime law, the mock trial also encourages students to openly discuss inherent biases and stereotyping, as well as the role they play in unwittingly perpetuating them. The students intelligently and poignantly engage in discussions on diversity in their community and the value of preventing the spread of racial slurs and hateful actions. The program needs volunteers to serve as prosecutors, defense attorneys and facilitators. It is a great opportunity for lawyers to practice their advocacy skills in front of a live audience and for non-litigators and non-lawyers to be involved in a fun activity that makes a difference. For more information on volunteering for the Hate Crimes Education Task Force, contact Christine Snider at email@example.com. The Task Force is co-chaired by Tarek Saad (Squire Patton Boggs LLP), Phyllis Wan (Hogan Lovells US), Beth Ann Lennon (Sherman & Howard) and John McHugh (Reilly Pozner). D Kaelyn Gustafson is a judicial law clerk to the Honorable Rebecca Freyre on the Colorado Court of Appeals. She can be reached at kaelyn.gustafson@ judicial.state.co.us.
October/November 2017 I The Docket I 33
LAW STUDENT CHRONICLES: THE VALUE OF INTERNSHIPS
t has been “1L of a year,” to quote a couple of my classmates as we were walking out of our final exam of the summer. When I penned my first article, I was just settling into the throws of evening classes on top of a full-time job and involvement in various organizations. Since then, I have found that semesters do become more manageable. Figuring out how to tackle law school alongside your personal life is best done through trial-and-error, and luckily most of my non-law school pals have become more understanding about the demands and unavailability of their law student friend. By spring semester, everything was starting to fall into place for me, and the newfound flow soon turned into a routine that risked becoming monotonous. Just in time, the sensation of new beginnings returned. I could feel the warmth of the sunshine beating on my skin at the park, hear the rush of the river from the melting snowpack, and, most exciting of all, I would be able to put a year’s worth of in-class learning into practice at the internship at the Colorado Water Trust that I had secured in March. In my humble (and accurate) opinion, internships are the most critical — and the most enjoyable — part of my educational path. These three- to four-month career test-drives are a way to show professional “personality.” You can build your resume to reflect the types of things that interest you. In many ways, these 34 I The Docket I October/November 2017
internships help employers piece together your potential knowledge about an area of law, and the story on your resume helps determine if you are a suitable match for an open position upon graduation. Personally, I enjoy participating in the work world as opposed to academia because my learning style is geared toward working through problem areas on my own and consulting a trusted colleague if I run into complications. All of the internships I have experienced have been extremely enlightening, which is probably why applying and interviewing for them can be so thrilling. When I walked into the first week of my internship, I was somewhat blindsided with the amount of information about water law that I did not understand. I quickly found that working full-time at the Denver and Colorado Bar Associations, part-time for the Colorado Water Trust and taking evidence, as well as administrative law, was going to be challenging. As I was also determined to soak up the beautiful weather, I spent mid-May to mid-July traveling, camping and rafting in Moab, Costa Rica, Michigan, Florida and stunning Colorado. I am the first to admit that this amount of involvement was a mistake. For the first time, I experienced “overdoing it,” and all of the things I was involved in suffered. My internship soon became a task that I was not able to dedicate very much time or effort to outside of the office. My supervisor handed me pamphlet after pamphlet and book after book to dig into, but my school reading load, on top of all of the traveling I had piled on, left me feeling exhausted and overworked. I managed to tackle items one by one and complete everything that was assigned to me, but I never felt like I was able to immerse myself in any given task. As I stated earlier, internships are possibly the most important part of the law school experience, and I was doing myself a disservice to dedicate anything less than my full attention to mine. If I had to give one solid piece of advice about taking on an internship, I would say this: Do not be afraid to drop something on your commitment list to be able to give 100 percent to it. Your supervisor has a lot to teach you, and I guarantee they want to see you succeed as an intern of theirs. Most of the time, they are doing their part, and they expect you to do yours plus some. You cannot succeed together if your mind is on edge about schoolwork or alternative work while at your internship. My mentor guided me toward some sound internship advice during one of our coffee meetings. She told me to explore and to have the courage to try a little bit of everything. This approach not only creates a well-rounded resume but also helps with professional development. If you are able to say that you
never want to work in a certain atmosphere or field, it could save you years of work at a job that you hate in the future. I have found alongside my peers that there is not one tried and true way to obtain this variety. Typically, the Career Development Office is extremely helpful in giving advice. Personally, I do a bit of research beforehand by talking with attorneys who work in diverse atmospheres. Once I hear something that sounds interesting, I do a bit more research on the organization to determine if it seems like something I would find interesting. Lastly, if I am lucky enough to know someone who had the internship previously, I inquire about the value of it. Although all of this research is helpful in the initial steps, the interview is the true pass-orfail moment. Just as organizations have questions for me, I make sure to line up plenty for them. I want to make sure my time is going to be filled with invaluable experience, and it is a great idea to put feelers out for the type of work you will be doing. Plenty of my friends have been stuck in internships they hated just for the title, and to me, that sounds like a miserable way to go about your semester. At the very least, internships get you out of the classroom and into a place where you are given a bit more autonomy. They are a chance for you to â€œstrut your stuffâ€? and show future employers or colleagues your potential. I have watched my post-grad peers who did not dedicate time to internships struggle a little bit in terms of what type of law they want to practice, what atmosphere they want to practice in or whom they want to work with. Internships are a means of getting all of that out of the way so time is not wasted post-bar exam trying to figure out happiness in a career. It will also make your transition from school to work
that much easier if you have mental notes of things that did not work for you previously. Internships bring the practice of law to life, allow you to taste-test your next career and provide valuable information in specific areas of law that are oftentimes not fully addressed in an academic setting. They provide a well-rounded look to your resume and inspire people to learn in a more hands-on format. As the saying goes, an expert in anything was once a beginner, and what better way to begin crafting your expertise than with an internship? D
Rebecca Spence obtained her B.A. in journalism and speech communications from Louisiana Tech University and is pursuing her J.D. at the Sturm College of Law at DU. She currently works in the Sections and Committees Department for the Colorado and Denver Bar Associations and is interning at the Colorado Water Trust. At DU, Rebecca is the outreach editor for the Water Law Review, secretary for the Natural Resources and Environmental Law Society, and an Honor Board representative for the class of 2019. In her free time, Rebecca enjoys yoga, the great outdoors, live music and reading in the park.
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Employment Law Conference Co-sponsored by the Labor & Employment Law Section of the Colorado Bar Association
THIS YEAR IN VAIL!
IN THE SPOTLIGHT WILL BE – ■ Practical Employment Law Tips and Tricks ■ Case Law Update ■ ETHICS: When Good Lawyers Do Bad Things ■ Privacy and Data Protection ■ Changing Landscape of Technology ■ New Lawyers Bootcamp – Checklists and Cheat Sheets ■ In-House Counsel and Human Resource Professionals ■ Inclusiveness and Diversity ■ The Blurring Lines in the Workplace
October 5-7, 2017
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Coan, Payton & Payne, LLC is pleased to announce that Robert D. Lantz has been elected to the Board of Directors for the Denver Council on Foreign Relations. Coan, Payton & Payne, LLC is LANTZ pleased to announce that founding member Brett Payton has been appointed to the Greeley City Council, representing Ward 2. Payton is also the current chairman of the Greeley Chamber PAYTON of Commerce. Ryley Carlock & Applewhite Estate Planning attorney Dylan Metzner was appointed to the Board of Directors for SafeHouse Denver. The law firm of Chipman Glasser announced that Daniel W. Glasser METZNER has been elected to the Board of Directors for Rocky Mountain Children’s Health Foundation. GLASSER Peggy Kozal, a member of Gordon & Rees LLP’s health care practice group, was recently appointed by Denver Mayor Michael B. Hancock to sit on the Board of Directors of the Mental Health Center of Denver. Arnulfo D. Hernández, managing partner of Hernández & KOZAL Associates, P.C., was named a regional president of the Hispanic National Bar Association. HERNANDEZ Moye White LLP has announced that partner Kelly Reiman has been appointed co-chair of the firm’s business section. J. David Arkell has been elected chair of Moye DR, Moye White’s REIMAN Alternative Dispute Resolution practice group. Arkell, a construction attorney who has practiced for more than 40 years, has mediated ARKELL and arbitrated construction disputes throughout the Rocky Mountain region. CHANGES D.A. Davidson Companies are pleased to announce that Jackie Beauprez has been named senior vice president, general counsel. In her new role, Beauprez will be responsible for all of
D.A. Davidson’s legal and regulatory compliance functions Muhaisen & Muhaisen, LLC is proud to announce that former paralegal Cristina Uribe Reyes was BEAUPREZ admitted to the Colorado Bar and is now an associate with the firm and REYES practices in immigration law. Andrew Schoedel has joined Muhaisen & Muhaisen, LLC as an associate. He practices in the area of dependency and neglect law. Miller & Steiert, PC is pleased to SCHOEDEL welcome Molly T. Zwerdlinger to the firm as an associate practicing in estate planning, probate and trust administration. Ryley Carlock & Applewhite ZWERDLINGER is pleased to announce that Stacy L. Brownhill has joined the firm’s water, energy, resources and environmental practice group in Denver. BROWNHILL Otis, Bedingfield & Peters, LLC is pleased to announce that Brynne Gant joins the firm as a litigation associate. Gant graduated magna cum laude from Brigham Young University and earned her J.D. from the J. Reuben GANT Clark Law School at Brigham Young. Coan, Payton & Payne, LLC is pleased to announce that Carol S. Raznick has joined the firm. Her practice focuses on all aspects of commercial real estate, homebuilding, financing, mergers and acquisitions, and general RAZNICK business. Foster Graham Milstein & Calisher is pleased to announce that Mallory Revel has joined the firm as an associate. J u s t i n M i l l e r h as j o i n e d REVEL Caplan and Earnest LLC’s health care and litigation groups as an associate. His areas of expertise include civil rights violations, personal injury claims, municipal law, MILLER policy development, constitutional law, contract disputes, and labor and employment matters.
If you are a Denver Bar attorney member and you’ve moved, been promoted, hired an associate, taken on a partner, received a promotion or award or begun service on a new board, we’d love to hear from you. Talks, speeches, CLE presentations and political announcements, due to their sheer number, cannot be included. In addition, The Docket cannot print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers, etc.) again due to volume. Notices are printed at no cost but must be submitted in writing and are subject to editing and space available. Send all notices to Clair Smith at firstname.lastname@example.org. Announcements will be placed on a first-come, first-served basis. 38 I The Docket I October/November 2017
Laura Wassmuth has joined the firm as special counsel with a focus on health care law. Her areas of expertise include litigation, credentialing proceedings and investigations, defense of civil rights claims, and employment and medical staff issues. WASSMUTH Terry Cipoletti has also joined Caplan and Earnest LLC as special counsel with a focus on health care law. He specializes in regulatory law and civil litigation. Cipoletti has CIPOLETTI worked with employers and employees in both the private and public sectors. Chipman Glasser is pleased to announce that John Bowlin has joined the firm. Welborn Sullivan Meck & Tooley, P.C. is proud to welcome Mallory Hasbrook to the firm as an associate. BOWLIN Her practice focuses on oil and gas title matters. HASBROOK Martinez Law Group, P.C. is pleased to announce that Glen “G” Matthews has joined the firm as an associate. His practice will focus on employment litigation.
Offering free and low-cost legal services for civil matters to those in need in the Denver area since 1966.
METRO VOLUNTEER LAWYERS 50th Anniversary is the perfect time for achieving your 50-hour pro bono goal! Visit our website for more information.
COURTROOM SPACE The Colorado and Denver Bar Associations have secured space at the Denver City and County building in courtroom 117 for members’ use as a practice space. To reserve time email email@example.com. A 24-hour notice is recommended. The courtroom is available weekdays from 8 a.m. to 4 p.m. Courtroom 117 is not available on Tuesdays and Thursdays and every third Wednesday of the month.
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BAR RESOURCES THE DBA PEER PROFESSIONALISM ASSISTANCE COMMITTEE Are you troubled by rude and unprofessional attorneys? Call Peer Professional Assistance for FREE one-on-one intervention. PPA has been sponsored by the Denver Bar Association since 1994. Call 303-860-1115, ext. 1, for more information. All inquiries are confidential. COLAP The Colorado Lawyer Assistance Program (COLAP) is an independent and confidential program exclusively for judges, lawyers and law students. Established by Colorado Supreme Court Rule 254, COLAP provides assistance with practice management, work/ life integration, stress/anger management, anxiety, depression, substance abuse and any career challenge that interferes with the ability to be a productive member of the legal community. COLAP provides referrals for a wide variety of personal and professional issues, assistance with interventions, voluntary monitoring programs, supportive relationships with peer volunteers, and educational programs (including ethics CLEs). For more information, or for confidential assistance, contact COLAP at 303-986-3345 or visit coloradolap.org.
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DBA PLACEMENT SERVICE As a membership service of the Denver Bar Association, the Placement Service provides law firms and legal departments of corporations with well-qualified applicants. Its quality approach to cost-effective staffing has made the DBA Placement Service a favorite of the legal community since 1986. It provides temporary, temp-to-hire and full-time employment opportunities for secretaries, paralegals, receptionists, accountants, administrators and office assistants. Contact Mev Parsons or Amy Sreenen at 303-894-0014 or email firstname.lastname@example.org.
PICTURE THIS CBA PRESIDENT-ELECT JOHN VAUGHT RECEIVES GOVERNOR’S SERVICE AWARD On September 7, DBA Past President and CBA President-Elect John Vaught was honored with the 2017 Outstanding Veteran Volunteer Award at an event in the Old Supreme Court Chambers at the Colorado State Capitol. This award specifically recognizes his dedication to the CBA and to Colorado Lawyers for Colorado Veterans. The Governor’s
Service Awards are presented annually in appreciation of individuals, community leaders, organizations, and AmeriCorps/Senior Corps members for their outstanding contributions to volunteerism and service throughout Colorado.
2017 COBALT CLASS The CBA’s leadership training program (COBALT) has continued to raise the bar for leadership and professionalism in Colorado. The CBA congratulates the dedicated and inspiring class of 2017: Angela Boykins, Christopher D. Bryan, the Honorable Natalie Chase, Ryan Coward, Caryn Datz, Jill Dorancy,
Christine M. Hernandez, Erika Holmes, Ruchi Kapoor, Suzanne Leff, Sarah Lipka, Ruth Mackey, John McHugh, Pax Moultrie, Tariq Sheikh, Jason St. Julien, Kathryn Starnella, Tammy Sullivan, William E. Trachman and Veronique Van Gheem.
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PICTURE THIS DBA YLD CHAMPIONS FOOD DRIVE FOR METRO CARING In July, the DBA Young Lawyers Division hosted its popular Barristers After Hours at the ViewHouse in Denver. The DBA YLDâ€™s food drive for Metro Caring collected 4,700 pounds of non-
perishable food items for those in need throughout the metro Denver area. The DBA YLD extends a heartfelt thank you to the 30 firms in Denver that participated.
RETIREMENT CELEBRATION FOR JANET BAUER AND REBA NANCE On August 30, the CBA and DBA held a well-attended celebration honoring Director of Finance Janet Bauer and Director of Law Practice Management Reba Nance. Bauer is retiring after 30 years of service with the CBA, and Nance retired after 22 years with the CBA. We wish them all the best in the future!
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PICTURE THIS 2017 CBA AWARD OF MERIT AND GARY MCPHERSON OUTSTANDING YOUNG LAWYER AWARD On September 7, CBA Award of Merit recipient Marcy Glenn and Gary McPherson Outstanding Young Lawyer honoree Kelley Rider Goodwin were recognized at a special Colorado Bar Foundation Emeriti Appreciation Reception at the Ralph L. Carr Colorado Judicial Center. The bar associations thank them for
their dedication to the legal and broader communities. The CBA is also grateful for the generosity of the following sponsors who made this event possible: Ben Aisenberg, Holland & Hart, and Johnson Kush.
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