Official Magazine of the Denver Bar Association
Vol. 40.4 I June / July 2018
2 I Docket I June/July 2018
DOCKET 14
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17
A Message from DBA President Franz Hardy
14
DBA Awards
17
COLAP Wellness
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25
Drones Descend on Denver at AUVSI XPO
June/July 2018 I Docket I 3
INSIDE
The mission of the Docket is to educate and entertain the Denver legal community — we hope without being sued.
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LETTER FROM THE EDITOR
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A MESSAGE FROM THE PRESIDENT
8 9
BRIEFLY
13
JUDICIAL TRIVIA INFOGRAPHIC
14
DBA AWARDS
17 19
COLAP WELLNESS CORNER
PRESIDENTS INTERVIEW : YVETTE LEWIS-MOLOCK
REPORT FROM THE COLORADO BAR'S 3RD ANNUAL JOURNEY TO CUBA
23 THE LAWLESS LANDSCAPE OF LEGAL WRITING 25 DRONES DESCEND ON DENVER AT AUVSI XPO
IN EVERY ISSUE 32
Legal Affairs
34
Picture This
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. Editor: Brendan Baker, bbaker@cobar.org Managing Editor: Alexa Drago, adrago@cobar.org Graphic Designer: Clair Smith, csmith@cobar.org Advertising: advertising@cobar.org Docket Committee: Ainsley E. Bochniak, Julie M. Borisov, Jerry R. Bowman, II, Scott H. Challinor, Craig C. Eley. David L. Erickson, Emma E. Garrison, James R. Garts, III, Peter E. Grandey, Ryan T. Jardine, Judith A. Keene, April H. Killcreas, Lauren Lockard, Kyle J. Martelon, Esq, Alicia J. McCommons, Daniel R. McCune, Douglas I. McQuiston, William R. Meyer, Corinne C. Miller, Paul F. Miller, Jr, Barbara J. Mueller, Kaitlin F. Nares, Heather O'Donnell, Gregory D. Rawlings, Sara C. Sharp, Marshall A. Snider, Daniel A. Sweetser, Erica N. Vargas, Anthony J. Viorst, Rachel L. Young 2017–18 Co-chairs: Kaelyn Gustafson and Paul Miller 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 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 Brendan Baker at bbaker@cobar.org. The editor has the right to accept and reject submissions at his discretion. 303-860-1115 • dbadocket.org
VISIT THE
DOCKET BLOG
DBADOCKET.ORG 4 I Docket I June/July 2018
Copyright 2018. 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. Photos from Shutterstock, iStock and Unsplash.
This year’s Barrister’s Ball was a great success, and raised much-needed funds for Metro Volunteer Lawyers. Thank you to everyone who participated and contributed. This kind of civic support and engagement is just one of the many characteristics that make our legal community so special. This issue sees the last President’s Message and On the Town interview from our outgoing executive, Franz Hardy. Franz is a pleasure to work with, and we all appreciate his service to the DBA and his contributions to the Docket. Our next issue will include an introduction to the incoming DBA President, Maureen “Mo” Watson. Also included in this issue are profiles of the 2018 DBA Award winners. These exemplary attorneys are all recognized by their peers for significant contributions to the practice and the
legal community here in Denver, and we hope reading about them will intrigue and inspire you. Enjoy these first months of summer, with everything on offer here in our great city and great outdoors. Have some adventures, make some unforgettable memories. And don’t forget to apply sun screen, wear a helment, stay hydrated, and look out for large predators! *Correction: The February/March 2018 Docket inaccurately reported information about the Rovira Scholarship. The Rovira Scholarship was initiated in memory of the Honorable Luis Rovira, former Chief Justice of the Colorado Supreme Court, and the fellowship requires a 6-month, not a 60-month, commitment. We apologize for the errors.
Sincerely, Brendan Baker bbaker@cobar.org
Have confidence in Eide Bailly’s experienced and certified professionals. We can assist with economic damage calculations, forensic accounting and fraud investigations, computer forensics and eDiscovery management.
EIDE LIKE I’D LIKE CREDIBLE AND OBJECTIVE EXPERTISE
What inspires you, inspires us. 303.586.8504 | eidebailly.com/forensics June/July 2018 I Docket I 5
DBA AWARDS AND PRESIDENTIAL INDUCTION
Ceremony
FRIDAY, JUNE 29 4:30 to 5:15 p.m. Awards Ceremony Complimentary Reception to Follow
Ralph L. Carr Colorado Judicial Center
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2 E. 14th Ave., Denver
The DBA Awards Committee is pleased to announce the honorees for this year’s awards: Education in the Legal System
Award of Merit
Denver Office of the Independent Monitor’s Youth Outreach Project
Mary Jo Gross
Young Lawyer of the Year
Richard Murray
Judicial Excellence Award
Volunteer Lawyer of the Year
The Honorable Alan Loeb
Ellie Lockwood
The ceremony will also feature the induction of the new CBA and DBA presidents for 2018–19.
RSVP lunches@cobar.org or 303-860-1115, ext. 727
6 I Docket I June/July 2018
A MESSAGE FROM DBA PRESIDENT FRANZ HARDY
remember to learn what you can from a setback and then move on (“What Every Lawyer Should Know About Setbacks”). The most immediate past message addressed those quintessential attributes of great lawyers and how they actually have little to do with the practice of law, such as discipline and selflessness (“Could It Be That a Lawyer’s Best Attributes Have Nothing To Do With the Practice of Law?”). As you can tell by now, I see our profession and legal community beyond the practice of law itself. It is about our respective journeys through life and our ability to learn and grow along the way. We just happened to choose law as our profession. I hope this resonated in the interviews over the last year, which certainly involved lawyers, but raised more about their backgrounds and experiences as people. We talked to Charles Casteel, the first AfricanAmerican president of the DBA, and got his perspective t has been an amazing year. I want to thank
over 42 years of practicing law. We also heard from Justice
each of you for allowing me to serve as your
Richard Gabriel and his unique path from Brooklyn, New
president. It has been a highlight of my career.
York to the Colorado Supreme Court. We talked to Judge
I have been fortunate to meet, collaborate with,
Christine Arguello, the first Hispanic judge on the U.S.
and learn from so many of you this year. Thank
District Court for the District of Colorado, about her story
you for making this term special and rewarding.
from a small town in Colorado to the bench.
One of many highlights has been the opportunity
The next interview was with Stephanie Donner, this
to communicate with you through these messages and
year’s recipient of the Richard Marden Davis award, who
interviews with several of our colleagues. If you recall,
has accomplished much as a young lawyer and given a lot
I started this term with an open letter telling you more
to her community. We also learned from Patrick Flaherty,
about my journey (“From There to Here”). Unexpectedly,
the first openly gay executive director of the DBA, about
I received scores of welcoming responses. Many of you shared your own experiences and stories with me. I was
his vision for our organization and the importance of inclusion. Finally, in this edition, we hear from Yvette
so moved that several of your responses were included
Lewis-Molock, an in house attorney, about her unique
in the next president’s message (“Wow! Thank you!”).
path from school desegregation in Denver to attending
Importantly, I learned that, no matter our unique paths, we
law school with two small children. From these interviews,
all share much in common.
I learned we all have unique paths and challenges ‘from
The next messages involved themes that I hope
there to here.’
transcended the law and addressed our lives. One
Finally, I want to conclude by thanking the DBA staff
discussed those lessons of both life and law, including
and board of trustees, who help run and steer this great
the universal truths that we must not fear adversity and
organization. The DBA is in excellent hands next year
we should continually challenge ourselves (“The Journey Thus Far: Reflections on Law and Life”). The following
under the leadership of Maureen “Mo” Watson. I have enjoyed working with Mo over the last several years and
message discussed how we as lawyers should set our
she has my full support.
individual pathways to achieve success, including the
It’s been a pleasure. Thank you!
importance of defining what success means to you (“What Every Lawyer Should Know About Achieving Success”). Equally important, the next message raised the
*All of the past president messages and interviews are archived at dbadocket.org. D
issue of dealing with and overcoming setbacks. Always June/July 2018 I Docket I 7
BRIEFLY
In what state did legislators put forth a bill that would have legally defined the value of pi as 3.2?
A: Indiana
DID YOU KNOW? Under the Code of Hammurabi, the sentence for bartenders who served watered down beer was execution.
OF NOTE: President Kennedy began this short book on the history of American immigration while he was still a senator. After gaining the presidency, he called for Congress to complete a comprehensive re-evaluation of immigration law, and began preparing the book for publication. He was assassinated before he could complete the work, but it was published posthumously with revisions and a forward by Robert F. Kennedy. It contains a broad history of immigration in the U.S., along with Kennedy’s assertions of the value of immigration, and proposals to liberalize immigration law. Given the perennial political import of the topic, this book by one of our most popular presidents should be of wide interest. 8 I Docket I June/July 2018
ON THE TOWN : An Interview with Yvette Lewis-Molock
Yvette Lewis-Molock is an Assistant General Counsel at Xcel Energy. I have gotten to known Yvette over nearly 15 years. She has an interesting background growing up in Denver. Yvette also had an interesting path to law school and over the course of her career. I think you will enjoy Yvette’s story and perspective. HARDY: Please tell us about your personal background. LEWIS-MOLOCK: I am a Colorado native. I grew up in Park Hill in Denver most of my life. I did not leave Colorado; in fact I stayed here for undergraduate and law school. HARDY: Please tell us about your professional experience. LEWIS-MOLOCK: My undergraduate degree was in microbiology, and I worked in the science field for about 10 years. I primarily worked for the University of Colorado Health Sciences Center in the Microbiology/ Virology department, and then for National Jewish Hospital doing Pulmonary Pediatric research.
HARDY: Why did you decide to then pursue law school? LEWIS-MOLOCK: The big driver at the time was patent law in biotechnology and the need for attorneys with a science background; therefore, I was an ideal candidate. I was looking at medical school or an advanced degree and I thought this would be a good fit. I actually applied to both medical school and law school when I was looking to change my career path. HARDY: Why did you choose law school over medical school? LEWIS-MOLOCK: At the time, I had one small child and I was pregnant with my second. HARDY: And you thought law school would be easier than medical school? LEWIS-MOLOCK: Well what I thought about was the difference in the time commitment for law school versus medical school and it was huge. I have always had an interest in law, but probably not as predominant as going into the medical field. However for patent law June/July 2018 I Docket I 9
with biotechnology being the emphasis, I thought it would still fit my interests, so I decided to go to law school. HARDY: How was it to go attend law school with two small children? LEWIS-MOLOCK: It was a challenge. I actually was pregnant with my second child when I started law school and then decided that probably was not the best idea, because I would have given birth about three weeks into law school, so I deferred for a year. There were always some challenges, but I had a lot of support from my husband and my parents at the time so it worked out. You can always do it as long as you put your mind to it. It is a little bit more challenging, but it is something that you can do. HARDY: So I take it you're now in the bioscience and patent areas of law? LEWIS-MOLOCK: No. It's funny because I am actually in litigation, but when I went to law school I said the last thing I would ever want to do is litigation. And that is exactly what I am doing now. HARDY: What did you do after law school? LEWIS-MOLOCK: I did an externship with a patent law firm and decided I did not want to pursue a career in patent law and because I was staying away from litigation as much as possible, I did transactional work for the University of Colorado Health Science Center. Like patent law, I discovered that transactional work was not a fit, so I stepped out of my comfort zone and took a job doing contract work as a public defender for the City and County of Denver. Then, I was an assistant district attorney for Weld County. Now I am in-house counsel at Xcel Energy. HARDY: How did you become interested in working for a utility company? LEWIS-MOLOCK: Quite honestly, I almost blew it off. I was not going to apply for the position. My husband had found it and I did not think I had the transferrable skills. It was for litigation, but it was civil as opposed to criminal. I thought, “Why in the world would they take me?� However, on the off chance it might work, I just said okay. I was looking for a change because at the time I was doing crimes against children at the D.A.'s office. As anyone who has done that kind of work knows, there is a short lifespan in which you can do that type of work because of the emotional toll that it can take on you, especially if you have children of your own. I went ahead and applied and it was a phone 10 I Docket I June/July 2018
interview. I had never had a phone interview. I thought, okay, this is going to be a challenge because the person who was going to be my supervisor was in a different state. I did ask them why they hired me after the fact. And they said, well we figured because of all that litigation experience and actual trial work we believed that you can use those skills and transfer over to the civil end with no problem. HARDY: How long have you been with Xcel Energy? LEWIS-MOLOCK: It will be 14 years in July. HARDY: What perspective do you have as an inhouse attorney that we outside attorneys may not appreciate? LEWIS-MOLOCK: I think there is a misperception that when you are in-house you do not do a lot of the work or it is easier and you have a regular 9-5. That is not the case. I think when you're in-house, you work even more. You are for the most part on 24/7. Even if you have outside counsel, which is not always the case, you manage them, but you also have to work with your internal business clients on a number of different issues. Also, in this day and age where companies are looking at cost-cutting measures and efficiencies, you end up doing a lot of prep work before you even send it to outside counsel. HARDY: You won the 2017 Docket Arts & Literature contest for one of your paintings. Do you see painting as an outlet for some of the pressures that can come with the practice of law? LEWIS-MOLOCK: I definitely think it is a way to deal with the pressures and actually just to use a different side of your brain to be a bit more creative. I think it is good to have variety in your life so you have somewhat of a balanced life and it is not just all about work. So whatever that is, whether it is hiking or exercise at the gym, I think you need to find that outlet because of the pressures that you have day in and day out. HARDY: And you're also an amateur photographer? LEWIS-MOLOCK: That goes hand-in-hand with painting. You take pictures and usually whatever you are going to paint is going to come from a photograph. I am not very good at remembering certain details I see that I want to paint, so photography is another outlet. HARDY: You're also an experienced traveler. What perspective has travelling given you? LEWIS-MOLOCK: I think when you travel you get to see a different side of the world. You get to see how other people live, their interactions, especially if you
go to a third world type of country. You recognize and you appreciate the things that you have a lot more. You also think, how I can I assist someone who does not have all the advantages that I have because it is an awakening that we are pretty privileged here in the United States regardless of our status, and there are other people that really need our assistance. HARDY: Speaking of that perspective, in getting to know you, I learned that you grew up in a time of school desegregation here in Denver. How was that experience? LEWIS-MOLOCK: I think that experience has caused me to persevere no matter what, as well as to adapt quickly in whatever environment I am in. We lived in a neighborhood that was African American and I went to an all African American school. Then busing came along. The city did not quite have the infrastructure to actually deal with busing at the time, so we would have big old city buses meet all the kids at one location and we would actually drive to the different schools to drop off the students at the different schools they were going to. This event introduced me to an environment that I had never really been placed in before. I had to go through the nuances of dealing with people I never really dealt with before and address the odd questions that you got. Often I would think, why are they asking me these questions? Also, we had to address and overcome the overall assumptions that were made, even by teachers, about how to categorize us or how to teach children of color, assuming that it was something different when it was not. I had both good experiences and maybe not good experiences through that process. What it has taught me is that sometimes you have to put those preconceived notions to the side about what you can and cannot do in order to make sure that you overcome. Because if you let someone tell you what you are not capable of and you buy into the hype, it could affect which direction you go in life. A lot of people who grew up in that same environment did not or were not able to prevail. HARDY: What advice would
you give to new attorneys starting out in their legal career? LEWIS-MOLOCK: I would say a couple of things. Number one, do not be afraid to try new things. Do not go in thinking that I am only going to focus on one thing. Be open because you do not want to miss opportunities. As I said, I did not want to do litigation, but now that is the world I am in. It is my absolute favorite practice area despite my many tries to stay away from it. I would recommend being open to whatever opportunities come your way. Number two, if you are feeling like you are not necessarily getting the support that you need, talk to other folks and make sure to get some guidance that will help you to keep going in the direction that you want to go. Never give up on your dream. HARDY: What are your views on diversity in the legal profession? LEWIS-MOLOCK: I think the legal profession has grown as far as diversity and inclusion, but there is a lot more work that needs to be done in order to support not just the attorneys that are new to the profession, but to grow the profession. We need to start at a lot younger age as opposed to focusing on colleges or even high school. I think if we really want to get diversity in the profession we need to start introducing the profession in elementary school. D
Yvette's winning Painting from the 2017 Docket Arts & Literature Contest
June/July 2018 I Docket I 11
THE 2018
DOCKET ARTS & LITERATURE CONTEST Calling all Aspiring Artists and Writers It’s time to put on your thinking caps and grab the nearest paintbrush (or your most poetically-inclined pen)!
Submission Period: April 15 to June 30 Submit entries to csmith@cobar.org.
Submit your creative works in: ART: Drawing, Painting, Photography, Mixed Media, Digital Art, and Sculpture. WRITING: Poetry, Fiction and Nonfiction.
12 I Docket I June/July 2018
Winners will be recognized in the October/ November issue of the Docket. See full rules and submission guidelines at dbadocket.org. No legal subject matter required.
THE COLORADO JUDICIARY BY THE NUMBERS by emma garrison and daniel cordova
Dan Cordova is a dual-degree lawyer-librarian, currently serving as the Colorado Supreme Court Librarian. He manages legal research and reference services for the Bench, the Bar and the general public, and negotiates print and electronic databases that serve the state judiciary, legislature, attorney general’s office, and state auditor.
Emma Garrison is Staff Counsel at Wheeler Trigg O’Donnell. She sits on the Denver Bar Association Board of Trustees and also represents the DBA as 1st Region Vice-President of the Colorado Bar Association.
June/July 2018 I Docket I 13
IN THEIR OWN WORDS: THE WINNERS OF THE 2018 DBA AWARDS The annual DBA Awards recognize outstanding attorneys and legal programs in the Denver area. Each of the award winners was nominated by their peers as an example of the very best our legal community has to offer. The DBA congratulates the winners and nominees, and thanks everyone who took time to submit a nomination. Please join us to celebrate the award recipients at the DBA Annual Awards Party, Friday, June 29 from 4:30 to 5:15 p.m. at the Ralph L. Carr Colorado Judicial Center. We will also be conducting the induction of the incoming CBA and DBA presidents on this occasion.
Award of Merit: Mary Jo Gross Recognizes outstanding service and contributions to the DBA and legal profession, or rendered in the interest of the improvement of the administration of justice. This award is given to a lawyer, judge or law professor who is a regular member of the DBA and whose distinguished career exemplifies the purpose of the Award of Merit. I am honored to have been awarded the 2018 DBA Award of Merit. To say that I was surprised by the call would be an understatement. But I have always been lucky. I was lucky to have been introduced to service and volunteering when I was a young girl in Youngstown, Ohio. After college I moved to Denver and earned my Masters Degree in Library Science from the University of Denver. It was a stroke of luck that my first position was at a Catholic High School and that the low pay forced me to take on part-time jobs during the summer months. And were the Fates guiding me when I took a 4-day secretarial temp job at Fairfield & Woods, where I stayed for 23 years, attending DU Law in the evenings and praying for a job offer upon passing the Bar? How fortunate those were the days when the firm paid for bar association dues AND expected the attorneys to be active members! How lucky that I had been taught the lessons of reliability, thoroughness and dedication. Was it pre-ordained that I would work for many years with individuals who also recognized the value of service and who encouraged and celebrated all 14 I Docket I June/July 2018
of my bar association activities? Was it mere chance to have met lifelong colleagues and friends through bar association activities? That they would create a statewide network of professional and personal support that sustains to this day? I don't know the answers to these questions. But I do know that I have always been lucky. Judicial Excellence Award: Alan Loeb Honors a DBA member of the judiciary for extraordinary service or exceptional contributions to the improvement of the judicial system. I am honored and humbled to receive this year ’s DBA Judicial Excellence Award. Born and raised in Denver, I have been a proud member of the DBA since 1971, when I returned home after graduation from Michigan Law School to begin my legal career practicing with Davis, Graham, and Stubbs. But my understanding of the value of bar association membership and participation goes back even further, because my father practiced law in Denver for over 50 years and was an active member of the DBA his entire career. In 2003, I was blessed to be appointed as a judge on the Colorado Court of Appeals, and in 2013, I was doubly blessed when then Chief Justice Bender appointed me to be the Chief Judge of the COA. Truth be told, I believe that when the DBA honored me with the Judicial Excellence Award this year, it was really honoring the entire COA in recognition of the role it plays in the Colorado judicial system
and the contribution it makes to providing access to fair, equal and quality justice to the people of the State of Colorado. Each and every day, I marvel at the excellence, integrity and collegiality of every person who works at the COA — judges, law clerks, staff attorneys, and clerk’s office staff. It has been my privilege to be part of the COA family for the past 15 years, and accepting this Award on behalf of the entire Court is truly one of the great highlights of my career. I am also deeply committed to the importance of mentoring in the legal profession. Well before Colorado wisely created the Colorado Attorney Mentoring Program (CAMP), the DBA led the way by organizing its own mentorship program. And I was an active and enthusiastic mentor for several young lawyers in that DBA program. I also was fortunate as a young lawyer at DGS to have wonderful mentors of my own, including Dick Davis (who was a DBA President and is the “Davis” of the DBA Richard Davis Award that is given to a deserving young lawyer each year). Dick gave me an invaluable perspective on what it truly means to be a lawyer (and later a judge) and infused me with a professional identity that has stayed with me throughout my career. Most importantly, he inspired me to pass on these same values to all the young lawyers who I have had the privilege to mentor both at DGS and in my 15 plus years as a judge. Finally, I never could have accomplished even half of what I have done in my career without the love and support of my wife Karen; my daughter, Melissa, and her husband, Matt Bloom (and, of course, my new grandson, Theo); and my daughter, Rachel, and her fiancé, Jesse Rodgers (who I had the pleasure of swearing in as a new Colorado lawyer just last year and is now a DBA member as well). Young Lawyer of the Year: Richard Murray Recognizes outstanding service and contributions to the DBA, legal profession and community. This award is given to a Denver lawyer who is a member of the DBA and is younger than age 37 or has been in practice less than three years. My decision to come to Colorado to attend the U nive r s it y of Co l orado almost two decades ago was a life changing event.
As with many individuals who come to Colorado, I did not leave, and I have been blessed with tremendous mentors since moving to this great state. During law school at CU, I was fortunate to have interned for Justice Allison Eid, Judge David Furman, and attorney John Zakhem. Following law school, I was honored to have clerked for Justice Nathan B. Coats on the Colorado Supreme Court. After my clerkship, I became a litigation associate at Kennedy Childs & Fogg, P.C., where I worked side-by-side with Mark Fogg. In 2012, I transitioned to Polsinelli, where I became a shareholder in 2016. This listing is not just a job history; it represents a fundamental and important part of my education and training as a young lawyer that can be summed up in one word — mentorship. Each of these important individuals in my professional life taught me invaluable aspects of the law and professionalism, and I would not be where I am today without the lessons I learned from each of them. It is an incredible honor to receive the DBA’s Young Lawyer of the Year Award. My involvement in the bar associations and legal community dates back to my time as a student. I have been blessed to have served in various positions within our legal community, including as the current president of CBA-CLE, chairelect of the University of Colorado Law Alumni Board, a DBA representative to the CBA Board of Governors, formerly as the first vice president and second vice president of the DBA, and on the Colorado Access to Justice Commission. I truly enjoy the work of the bar associations and working to give back to our community. Volunteer of the Year: Ellie Lockwood Presented to a DBA member who has performed extraordinary voluntary legal or community service. Being named the Denver Bar Association’s Volunteer of the Year is an incredible honor. I received my J.D. from the University of Denver Sturm College of Law in 2010. My practice focuses on business and intellectual property litigation, but pro bono has always played a significant role in it as well. My pro bono work really took off while I was still in law school when I became involved with the Colorado Lawyers Committee. I had the wonderful opportunity June/July 2018 I Docket I 15
to work with terrific lawyers on high-impact litigation affecting our state mental health and public school systems. Now, as Co-Chair of the Colorado Lawyers Committee’s Denver Legal Night with my colleague Stephanie Kanan, I have the privilege of helping to coordinate and run bi-monthly legal clinics where volunteer attorneys provide free legal information to people in our community who cannot afford legal services on issues like immigration, housing, family, and employment matters. I am also one of the lawyers who represents Disability Law Colorado, which protects and promotes the rights of people with disabilities and older people in Colorado. The DLC legal team achieved a groundbreaking settlement in 2012 with the State of Colorado that we are still working to uphold. It concerns the constitutional rights of pretrial detainees with mental illness who are languishing in jails throughout our state and seeks to ensure timely competency evaluation and treatment in an appropriate clinical setting. Lawyers have a civic duty to use their law degrees — a tool others do not have — to make a difference in our community. Lawyers in Colorado are fortunate to have the support of our Supreme Court and organizations like the DBA to encourage volunteer and pro bono participation. Making legal services accessible to all members of our community is so important, which is why I enjoy volunteering my time to help those most in need. I am grateful to my family, my firm, and the DBA for supporting my efforts. Outstanding Program of the Year: Denver Office of the Independent Monitor's Youth Outreach Project Acknowledges those programs or projects that uphold the highest traditions of the legal profession such as ethics, professionalism, education, access to justice, community service or promoting charitable causes. It is a tremendous honor to receive the DBA’s Education in the Legal System Award. As Denver’s Independent Monitor, I provide independent oversight of the Denver Police and Sheriff Departments, and actively look for ways to strengthen relationships between our 16 I Docket I June/July 2018
community and police officers. The Bridging the Gap Program was born in 2013, when I saw an uptick in community concerns about low-level contacts between youth and officers escalating into arrests — and sometimes further youth entanglement in the criminal justice system. These contacts were often propelled by misunderstanding: many youth were familiar with their rights but not their responsibilities when in contact with law enforcement, while officers often expected adult reactions from youth, despite their cognitive immaturity. In partnership with Denver’s Department of Safety, the Denver Police Department, community service organizations, local attorneys and judges, and other partners, we developed the Bridging the Gap Program. The program trains youth on their rights and responsibilities when in contact with law enforcement. It also provides evidence-based training to officers on adolescent development and de-escalation techniques when contacting youth. Trained youth and officers then participate in day-long forums in which they share their personal experiences of prior police/youth contacts, discuss their perceptions during those encounters, and collaborate to develop guidelines for future contacts. To date, the program has trained 1131 youths and 267 police officers, and we have hosted 26 forums with kids and cops from neighborhoods across Denver. Faculty from the University of Colorado’s School of Public Affairs are currently conducting a grantfunded evaluation of the program’s impacts, and the preliminary data are very promising. Participation in the program markedly improves youth perceptions of and willingness to trust police officers, and it empowers them to more successfully interact with officers. Anecdotally, officers also report increased confidence in their ability to manage their interactions with youth. As Independent Monitor, my role is to enhance the Denver Police Department’s compliance and internal accountability mechanisms. As a lawyer, I believe that one of my responsibilities is working to enhance our system of justice. Contacts with the police often represent young people’s first (or only) interaction with our legal system. By improving those contacts and increasing trust in the police, it is my hope that the Bridging the Gap Program will also enhance trust in our legal system in general. I am very grateful to the dedicated staff of the Office of the Independent Monitor and the Denver Police Department who work tirelessly each and every day to make the program a success. D
BUILD YOUR RESILIENCY TO CHANGE IN UNCERTAIN TIMES by sarah myers
“Everything changes and nothing stands still.” ~Heraclitus As Heraclitus and many other philosophers and theologians have pointed out over the ages, the only constantcy in life is change; yet change is still what causes us the most stress. Why is change stressful? In general, we feel safe when we have the right balance of consistency and growth (or "wanted" change). Too much consistency feels boring, uninspired and stagnant. When we don’t have room for growth and expansion, we desire change. Too much change, however, feels overwhelming and "out of control." What tips the balance one way or the other is subjective depending on the person. It could be anything from too many emails in our inboxes, having to go to school to pick up one of our children who was just suspended, attending to an aging parent who now needs a high level of care, too much traffic on the way to court making you late, unexpected discovery in a case, or the fact that your spouse or partner didn’t take out the trash as promised. Any number of unwanted changes that we perceive as stressful and negative can result in feeling strain, worry, low energy and hopelessness, particularly if the stress becomes compounded and gains momentum like a snow ball rolling downhill. Maintaining this balance is challenging for attorneys because we not only have to create a balance of safety, reliability and calm with the right amount of passion and interest in our own lives, but we are constantly helping our clients navigate through change in their own lives. As such, our profession
demands a special set of skills and competencies to make sure the change our clients experience is as painless as possible. Because the practice of law is a detail-oriented profession with high stakes, and because our clients want whatever changes they are experiencing to happen in a certain way, perfectionism is one of those skills. The problem, as research points out, is that perfectionistic tendencies ironically make facing change difficult, and can negatively impact our interpersonal relationships, personal well-being, and happiness. Perfectionism is basically an attempt to protect ourselves and feel safe; after all, if we can create the illusion of control, then we must be safe, right? Part of the problem is that the environment is always changing, and we have very little to no control over how circumstances play out, or how people around us are going to behave, what they will say, or what they will think. Another part of the perfectionistic equation is spending a tremendous amount of time and energy worrying about what other people think of us and modifying our behavior, our words, or our appearance in order to please others. There is a good reason why social media outlets put “like” as a response option to posts; this temporarily boosts a sense of self-worth and a sense of control in the person posting it. But this temporary feedback is like everything else — it will change, and that will leave us scrambling to find new ways to please and impress others. Like an addiction, it is a vicious cycle that leaves us feeling hollow and even less capable of dealing with change. June/July 2018 I Docket I 17
Striving to do our best and setting goals is gratifying and healthy. Perfectionism, on the other hand, is “frustrating, neurotic, and a terrible waste of time” according to journalist and news editor Edwin Bliss, who spent 25 years producing for the likes of Edward R. Murrow and Walter Cronkite. In the legal profession, perfectionism is often prized, but it is misunderstood. After all, what happens when we can’t reach the standard of perfection we set for ourselves or others, and feelings of shame, judgment, and blame take over? The negative psychological ramifications of perfectionism are extreme, including the higher risk of depression and anxiety among those who are perfectionists. There really is no such thing as perfection, and when we attempt to control ourselves or the environment and the people in it, we do not make things perfect — we destroy the potential for authentic communication, and, ironically, destroy the very skills we need to handle change: creativity, honesty, reality, humor, understanding and compassion. After all, nothing extinguishes laughter and joy faster than judgment, criticism, guilt, shame, and being or feeling micromanaged. So how can we take care of ourselves in a profession that fuels perfectionism, and in a society that bombards us with specific standards for “happiness” and “success” (beauty, weight, money, etc.)? Two antidotes for perfectionism are vulnerability and authenticity. In the legal profession, the idea of being vulnerable is likened to appearing “weak”; and appearing as anything less than “Superman/ Superwoman” is taboo. But being vulnerable does not mean weakness or submissiveness. Vulnerability implies having the courage to be yourself, which means being authentic. In order to handle change well, we have to know our priorities and be honest with ourselves and others about our preferences and opinions. Other quick tips to try when unexpected and unwelcomed changes occur include: 1. Remember that there is no such thing as perfection. There is no right or wrong way to do something. If you, or someone else, makes a “mistake,” it is an opportunity to learn — it is not the end of the world. 2. Focus on your strengths, resiliency and ability to bounce-back from stress. What have you or other people done in the past to handle the type of situation you are now facing? 3. Remember that life is a journey, not a destination. Mind your own business, and let others 18 I Docket I June/July 2018
walk their own road (don’t be co-dependent). Often times we try to control changes going on in other people’s lives because we believe that we know what is best for another person. As attorneys, however, we are involved in other people’s lives on a daily basis. But there is a difference between providing legal counsel or advice when we are being paid and trying to be a problem solver for everyone we come across. Keep in mind that the more you go looking for problems, the more you will find! 4. Be grateful for who you have become, and set reasonable goals for yourself. Do not punish yourself mentally or emotionally if you don’t get things perfect along the way. Stand back and appreciate your efforts rather than focusing on whether you have made it to your predetermined destination. After all, people who never face failure are those who never take risks or have the strength to be authentic. 5. Don’t compare yourself to others, and don’t compare others to you. 6. Keep things in perspective. The pressure to be flawless and for things to stay status quo is both internal (something we expect of ourselves) and external (something that comes from those around us or from society in general). The next time you find the need to be hard on yourself or someone around you, remember that change and transformation keep our lives from being stagnant. Focus more on how to creatively approach and resolve problems than on the inconvenience and stress that the problems might create. And, if there is something in your environment that you cannot control, do not waste your time perseverating on it or worrying about it. Relax, and be kinder to yourself and to others, including those perfectionists around you. It will not only improve your interpersonal relationships, it will also improve your mental, emotional, and physical health! D Sarah Myers, JD, LMFT, LAC, is the clinical director for the Colorado Lawyer Assistance Program (COLAP)— smyers@coloradolap.org. COLAP provides free and confidential services for judges, lawyers, and law students. For more information about COLAP, visit www.coloradolap.org. Barbara Ezyk, executive director of the Colorado Lawyer Assistance Program, is the coordinating editor of this series of Wellness articles during 2018. If readers have suggestions for topics of future Wellness articles or would like to contribute to Wellness articles in the Docket, contact Ezyk at bezyk@coloradolap.org.
REPORT FROM THE COLORADO BAR’S 3RD ANNUAL JOURNEY TO CUBA by brendan baker
his April, a delegation of 19 attorneys and their partners participated in the 3rd annual Journey to Cuba, sponsored by the CBA, Colorado Women’s Bar Association, Colorado Hispanic Bar Associations, Colorado LGBT Bar Association and the South Asian Bar Association of Colorado. The trip was organized by Cuba Cultural Travel, and included lectures and discussions worth 9 CLE credits. It was my great privilege to accompany the trip, which has sold out in every year it has run. The trip included four nights in Havana, with an optional three-night extension including travel to Pinar del Rio, the Viñales Valley, Cienfuegos, Trinidad and Santa Clara. Each day featured a mix of cultural activities, guided tours, CLE courses, excellent meals, and time to explore. For the first part of the trip, participants either stayed in the government-run Hotel Nacional, one of Havana’s most famous and impressive cultural landmarks, or in one of three casas particulares in the Vedado neighborhood of Havana. These are private homes that have been converted for paid lodging, much like a bed and breakfast. There is presumably a wide range of quality and amenities among casas particulares, but our accommodations were first-rate. The home I stayed in was owned by an art collector, and our large rooms were situated around a marble-
floored atrium packed with eye-catching paintings and sculptures in a wild mix of styles. It overflowed with tropical plants, and books and magazines were stacked high on several coffee tables. We began each day here with a breakfast of eggs, bread, ham, cheese, freshly squeezed juice, and slices of ripe mango, guava, and papaya, while birds flitted between the flowers and tiny lizards scaled the vine-covered walls. During the Havana portion of the trip, each day featured two CLE lectures, usually first thing in the morning and then after lunch. We had classes on US-Cuba relations; gender and sex relations in Cuba; mediation and family law; Cuba’s emerging private sector; and the business and investment environment facing international companies and non-profits looking to work in Cuba. Every one of the lectures was engaging and informative. The speakers were all prominent intellectuals, able to answer even the most probing questions about the country, with what appeared to be total candor. Between the lectures, we explored different areas of the city, often with a guide to provide historical and cultural information. We took a walking tour of Old Havana, gaping at the gleaming plazas surrounded by buildings dating as far back as the 16th century, in colonial and baroque styles evocative of Madrid, Rome, Istanbul, and New Orleans. We visited the national June/July 2018 I Docket I 19
Museum of Cuban Art, housing some of the country’s most important cultural artifacts from the early colonial period through to modern day. We enjoyed an architectural bus tour of western Havana, focused on the 20th century gems that sprouted up around the city in its pre-revolutionary economic heydays. Our meals were taken at paladares, or privately owned small restaurants. Like the casas particulares, paladares are a private form of business that was only permitted by the communist government starting in the 1990s, following the collapse of the Soviet Union and the resultant economic struggles in Cuba. Additional economic reforms in the past few years have created an explosion of private restaurants on the island. Previously, prepared meals were only available for purchase at government-run restaurants, which gave Cuba a reputation for having sub-par food — a reputation which at this point is clearly undeserved. The Cuban style of eating is to serve an assortment of dishes, all at once. While the fare varied somewhat from one paladar to another, it was standard for every meal to include chicken, pork,
beef and fish options, along with several vegetablebased side dishes and the ubiquitous black beans and rice, or Moros y Cristianos (“Moors and Christians”). The variety within each meal made it easy to have a different experience each time, even if overall the dishes were often similar from one repast to the next. It became fun to note the inventiveness each paladar brought to the signature national dishes, like tasting 20 I Docket I June/July 2018
how the rich flavors of ropa vieja, a shredded beef dish that literally means “old clothes,” differed from place to place. There was also so much superb seafood that by the end of the trip, several of us found we were tired of eating lobster. Most evenings were capped by a cultural excursion. The first night in town featured a private guitar and percussion performance by a trio covering the history of Cuban music. On the second night, we enjoyed dinner and drinks at Fabrica de Arte Cubano (FAC), a former cooking oil factory that was taken over by a group of artists and turned into an unfathomably hip art gallery/night club/restaurant/performance space. This three-floor warehouse took an entire evening to explore, as it showcased impressive and challenging works in a wide range of media, live music on several stages, a giant screen projecting pirated VH1 Classic videos next to a psychedelic mural of Fidel Castro, and multiple bars serving enormous mojitos. Other cultural events we enjoyed included dance and choral performances, a private concert by the incredible chamber section of the National Youth Orchestra, and a meet and greet with local artists at the home of one of our guides. And wherever we went there was music. At times it seemed like everyone in the country must be a world class musician, singer, dancer, or some combination of the three. Apart from the professional performances we attended, there were guitarists in every doorway, percussionists on every corner and full bands in half of the restaurants and bars. On the whole, Havana has a crumbling grandeur that is hard to describe, combining as it does the wealth and style of disparate cultures over several centuries, alongside omnipresent examples of disrepair and penury. The effects of the embargo are readily apparent, most noticeably in the jumble of beautiful ‘50s-era Buicks, Fords, and Chevys alongside newer, purely functional Russian and Chinese vehicles, all of them running who-knows-what amalgamations of international parts under the hoods. It was clear that
nothing is ever discarded in Cuba, as it might not be replaceable, and it was common to see folks walking down the street with ancient microwaves or radios, on the way to repair shops. All of this made the city feel poor; but at the same time every Cuban citizen is guaranteed housing, education, healthcare, and food rations, and the effects of this are just as obvious. We did not see a single homeless person or beggar, which would be a statistical impossibility in any large American community. Crime is very low. There was a strong sense of civic pride. Havana defies easy analysis or comparison. After four nights, about half of us said farewell and returned home, each person marveling at how much experience had been packed into such a short trip. The rest of us stayed on for the extended portion, featuring travel into western Cuba. This part of the trip did not include any CLEs, but provided even more opportunity to meet with Cubans and to see life outside of the major international destinations. On a day trip from Havana to Pinar del Rio, a smaller town about two hours away, we visited Proyecto Grabadown, an innovative art school and community center for children born with Down Syndrome, where we were treated to a dance performance and samples of the students’ art. We then swung through the Viñales Valley, considered to be the most beautiful place in Cuba. Steep limestone formations called mogotes rise high into the air there like towering islands in a sea of grass, a stunning geological phenomenon found almost nowhere else in the world. Before this backdrop, we visited an organic farm and restaurant where we enjoyed a true field-totable experience, and learned about traditional Cuban agricultural methods for protecting crops without the
use of pesticides. At a family-run tobacco farm, we learned about the cigar-making process and enjoyed sampling specially prepared cigars the family makes from the 10% reserve of the crop they are allowed to keep for private use. The final two nights of the extended trip were spent in Cienfuegos, a town on the Gulf of Cazones near the Bay of Pigs. Known as the Pearl of the South, the city is a UNESCO World Heritage Site that was settled by primarily French immigrants in the early 1800s. Even more so than in Havana, in Cienfuegos it was apparent that there is more than meets the eye to many of the stained, cracked and generally nondescript facades you can see from the street view. One of the casas particulares the group stayed in had a gorgeous blend of original 19th-century neoclassical and Mughal-style elements, including an enclosed marble spiral staircase, interior balconies overlooking a courtyard, and 15-foot ceilings painted with cherubic murals; there was no hint from the exterior as to the beauty inside. Basing out of Cienfuegos, we visited Trinidad, another UNESCO World Heritage Site, as well as Valle de los Ingenios, the historical center of Cuba’s sugar production. In sweltering heat, we drank mojitos and chewed on fresh sticks of sugar cane. Throughout the trip we encountered many aspects of Cuba’s 500-year history, but the sugar plantations are of particular importance. It was Cuba’s sugar production that made it an important stop on the transatlantic slave route, bringing the country wealth and people and ultimately creating the Afro-Cuban culture that defines it today. Throughout the trip, this history was ever-present, in the music we heard, in the works of art we saw, and of course in the appearance of June/July 2018 I Docket I 21
Cubans themselves, who are highly cognizant of their blended heritage even if some issues of colorism and prejudice stubbornly persist. Most Cubans follow at least some of the traditions of Santería, a syncretic religion formed from the admixture of Catholicism, traditional African belief systems and whatever spiritual elements were preserved from the Taino peoples who originally populated the island. We were informed that after opening a bottle of liquor, a good Cuban should pour some on the ground to honor the orishas, manifestations of supreme divinity originating in ancient Yoruba religion. On the last day of the trip, we visited the Che Guevara Mausoleum in Santa Clara. While the communist government was a frequent topic of conversation throughout the excursion, this was the first time I felt anything like a government presence. From talking to earlier visitors, I had heard about routine police stops on the street, propaganda and other authoritarian elements. But other than seeing a couple of military vehicles while we were driving from city to city, in my experience Cuba was notable for an absence of recognizable government or police presence. Other than one anti-blockade billboard we passed on the road, most of the propaganda we saw was confined to the inescapable images of Fidel and Che — along with Jose Martí, the Spanish-era revolutionary poet and political theorist who Cubans often speak of as their least morally ambiguous national hero. I saw posters from a government antihomophobia campaign, as well as presumably illegal posters protesting the incarceration of Cuban political prisoners. While all of our hosts evinced discomfort with saying anything explicitly disparaging of the system of government, they often spoke questioningly or critically about specific government policies. The Che Guevara Mausoleum was the only place where I sensed something like a religion of the state, most obviously expressed by the severe young women who served as guards and put an immediate stop to anything they deemed remotely inappropriate for that sacrosanct space. I was glad for the reminder, before returning to the States, that Cuba does have an authoritarian, communist government, and its citizens are not free in the way Americans understand the word. It felt like a dose of reality that would have been very easy to avoid otherwise, amidst the salsa 22 I Docket I June/July 2018
music and dancing and free-flowing “Vitamin R,” as the Cubans call their rum. The week after we returned to the States, Raul Castro stepped down as president of Cuba. We were unexpectedly among the last Americans to set foot in the country during the 60-year Castro regime. At the time, the Cubans we met were cautiously optimistic about their political future. Much has changed there in the last few years, largely starting with the “Cuban thaw” initiated by President Obama, who is beloved in the country as the first U.S. president in decades to acknowledge the common humanity of Cubans and Americans. It is still too early to say how the new political regime in Cuba will behave, or what i t s re l a t i o n s w i t h t h e A m e r i c a n g ove r n m e n t will be. The character of this relationship has major implications for average Cubans. The tension that Cubans underscored for us was the question of how to meet the standards of a freer, more open society and survive in a capitalist global economy, without losing the systems that currently guarantee all Cuban citizens at least a minimal standard of living. This is something they seem generally unwilling to compromise on. As an American, I for one was unable to provide many reassuring solutions to that dilemma. Having now spent time in Cuba, having made an acquaintance with people there and seeing a bit of how they live, I hope against hope that our two countries can continue forward in the spirit of rapprochement. We are both vibrant, multi-ethnic societies with roots in Europe, Africa, and the indigenous cultures of the Americas, marred by periods of discord and human rights abuses, but renowned for our cultural exports, our natural beauty, and our ability to survive adversity. We make better friends than enemies, or at least we should. Journeying to Cuba was easily one of the most surprisingly profound travel experiences I have ever had. The rest of this year’s participants echoed that sentiment. We were all of varying ages and backgrounds and political persuasions. Yet we were unanimous in finding Cuba to be a beautiful, eyeopening, expectation-shattering place, somehow just a 45-minute flight from the tip of Florida. D
THE LAWLESS LANDSCAPE OF LEGAL WRITING by michael a. blasie
Think. Good legal writing is not about following rules. Good legal writing is good judgment. Test and improve your judgment with two guidelines. Have A Good Reason For Everything You Write. Many attorneys stop thinking about writing after a few years. They form habits. They think they know what certain briefs should look like. They stop choosing and begin defaulting. This is a problem. Brief writing is like cooking: if you keep using the same recipe and ingredients the result doesn’t change. Although you might not “always” or “never” write a brief a certain way, you should always have a good reason why you wrote a brief a certain way. Why did you write it this way instead of that way? The reason may be responsive; for example, at a recent CLE the judges of the court said they find it helpful when briefs do [x]. Or it may be pragmatic; for example, the court’s rules require [y]. Or perhaps the reason comes from judgment; for example, this citation warrants a fuller multi-sentence explanation rather than a parenthetical because [z]. All fine. Just have a reason, and make it a good one. “Because that is how it is done” or “Because that is how [name of other attorney/institution] does it” are not good reasons. Here’s why.
Consider the standard introduction to a brief: Defendants Profitable, Corp. (“Profitable”) and Not Me, Inc. (“Not Me”), (collectively “Defendants”), respectfully submit this brief in opposition to the motion filed by plaintiffs Harmed Corp. (“Harmed”) and XYZ, Inc. (“XYZ”) (collectively “Plaintiffs”), pursuant to C.R.C.P. 59(e), to amend the judgment filed herein on January 1, 2017 (“Judgment”). I see this introduction in almost every brief. Why? You might say it identifies who wrote the document, what the document is, and the relief sought. But that’s not why authors include it. That reasoning is engineered after-the-fact. Instead people probably write this paragraph because they always have. They saw it in templates as a young attorney and they have seen it in most briefs since. So we all do it, for no reason. This introduction is redundant with the caption. I know who the authors are, what the document is, and the relief sought because it is in giant capital letters one inch above the introduction. Approach this introduction from a different angle. If you cut this paragraph what would happen? For starters, most readers would not notice because they reflexively glance over the paragraph anyway. It certainly would not confuse your readers. After all, you June/July 2018 I Docket I 23
have never read an opinion that started with “This is an opinion by Chief Justice Roberts in the case of Smith v. Jones.” Level of confusion: zero. But cutting the paragraph would reduce your word count and provide a chance to hook your audience. Although this introduction does not hurt your brief, it fails to strengthen it. It blows the opening. Liken it to comedians who open with “How is everyone doing tonight?” Wasted words, wasted time, wasted opportunity. You could have hooked your audience and you didn’t. True, this introduction could be helpful in some cases. For example, if you represent a third party intervener, this opening could introduce the party and explain its relationship to the case. Or perhaps you use it to avoid confusion when several motions have been filed with similar titles. Use this introduction when you have a good reason. Lastly, a few stylistic points. Many attorneys compulsively define terms with quoted phrases inside parentheticals. Stop, unless you have a good reason. Here, there is no need to define all the defendants in the case as “collectively ‘Defendants.’” Obviously the term “Defendants” refers to all the defendants in the case. Such a definition might be useful if you are referring to some, but not all, of the defendants (e.g. “the Colorado Defendants”). Similarly, you can shorten party names (“Not Me” and “XYZ”) throughout the brief without “defining” them and without any risk of confusion. Likewise, if there is only one judgment, then “Judgment” refers to it. This habit is one we think helps readers, but often causes more harm than good. It is a tool that works sometimes. Use it when you have a good reason. Don’t when you don’t. Good writing is good judgment. Tie Your Reason to How You Will Persuade Your Audience. A good reason is not enough because not all good reasons persuade. You must tie that reason to how it persuades your audience. Here’s an example from real life. You decide to use your legal logical prowess and critical thinking skills to improve your family life. Good idea. So you go home, think hard and realize of course it makes far more sense for the silverware to be in this other kitchen drawer. You move everything. Bad idea. Your family will not be persuaded. Now consider a legal example. Legal writing guru Bryan Garner advocates putting citations in footnotes. Garner cites benefits like increasing readability, 24 I Docket I June/July 2018
exposing poor writing, and enhancing the main text discussion of authority. These are good reasons. But do not neglect your audience. Few judges sanction this practice. Most judges despise footnotes, or at least view them skeptically. Reading a brief with dozens of footnotes will certainly breach expectations and could cause intense frustration. Suppose you are appealing a criminal conviction. In a lengthy but carefully compelling narrative you weave together the defendant’s unique circumstances, understandable actions, and unfair treatment during the case. Then you a raise a single issue about whether the trial court erred by denying a challenge to a juror who had difficulty understanding voir dire questions and difficulty communicating. Your compelling narrative may elicit sympathy and reflect a mastery of storytelling, but your reader will likely see it as wholly divorced from the legal issue. And a judge may view it as an appeal to emotion without arguing the applicable law. Finally, most legal writing advice assumes a single audience — the court. But practitioners often have multiple audiences, like senior attorneys and clients. Consider all of these audiences when choosing a writing strategy. Conclusion As lawyers we cannot guarantee results. But you can guarantee thoughtful writing. Avoid writing because some teacher or professor told you to write a particular way. Avoid writing because everyone else does it a particular way. Think for yourself. Have your own reason for everything you write. D See http://cbaclelegalconnection.com/2017/09/ lawless-landscape-legal-writing/ for a version of this article with additional notes and citations. Michael Blasie is a Staff Counsel at Wheeler Trigg O'Donnell LLP and former law clerk to Judge David Richman of the Colorado Court of Appeals. After graduating from NYU Law School he worked as a commercial litigator at Cooley LLP, Reilly Pozner LLP, and Kelly & Walker LLC. He authors the chapter on appellate brief writing in the Colorado Appellate Law and Practice treatise, and a monthly legal writing blog for the Colorado Bar Association's Legal Connection. When not practicing law, he enjoys being a volunteer firefighter for the City of Golden.
a s t m o n t h , t h e C i t y o f D e nve r h o s t e d XPONENTIAL, the annual conference and trade show of the Association for Unmanned Vehicle Systems International (AUVSI). AUVSI is the nation’s largest industry association dedicated to unmanned systems and robotics, and the conference drew roughly 8,500 attendees from the defense and commercial sectors. Although AUVSI represents all manner of unmanned and autonomous systems, much of its membership is focused on unmanned aircraft systems (UAS or “drones”). As such, these aircraft and the technology that makes them work are XPONENTIAL’s marquis attraction. Although the term “drones” may evoke remotely operated tools of war, the use of non-military drones in the United States is increasing, well, exponentially as small UAS technology continues to advance. Drones
are increasingly used in public safety applications such as search and rescue, and monitoring of natural disasters such as wildfires or the aftermath of hurricanes and floods. Filmmakers and news gatherers are using drones to get breathtaking shots of the world around us. Drones are being used for all manner of inspection and monitoring of critical infrastructure such as railroads and cell towers, where sending a person to do the job would be expensive or even dangerous. Of course, package delivery continues to get headlines, but companies also envision using drones for other innovative purposes such as temporary cell sites, mobile defibrillators and even aerial taxi service. And these are only a few of the myriad applications that have emerged in recent years. The enormous potential of drones to transform modern society was front and center at this year’s June/July 2018 I Docket I 25
XPONENTIAL, making Denver — a city increasingly known for its own vibrant startup culture — the perfect place to host the conference. The showroom floor at the Convention Center boasted numerous technologies designed to advance the unmanned systems industry, such as PrecisionHawk’s newly-debuted beyond visual line of sight (BVLOS) drone platform, various package delivery systems and safety equipment such as automatic UAS parachutes. Drones companies did live demonstrations on the roof of the Convention Center parking lot, and a giant cage inside the showroom
featured drone racing. The conference also included a comprehensive educational program with keynote speeches, panels, presentations, and roundtable discussions focused on technological and policy issues facing the unmanned systems industry. Prominent local speakers included Governor Hickenlooper and Fort Collins mayor Wade Troxell. As with any new technology, the proliferation of drones in the United States has created a wide range of fascinating issues for regulators and policy makers around the country. Drone development presents a special challenge on this front because it requires integrating the disruptive start-up culture with the federal airspace — traditionally one of the most tightly (and conservatively) regulated areas in the country. Some of the key issues for lawyers are discussed in more detail below. Section 333 and the Introduction of Commercial UAS into the National Airspace. The Federal Aviation Administration (FAA) 26 I Docket I June/July 2018
(previously the Federal Aviation Agency) has been responsible for the safe navigation of our nation’s airspace since 1958, when Congress passed the Federal Aviation Act in response to a series of high profile airplane collisions and accidents. In that role, the FAA has promulgated thousands of regulations and established numerous certification procedures and other regulatory processes to ensure the safety of the airspace and the aircraft that use it. But the scale and scope of FAA regulations, and their focus on manned aviation, meant that drones were initially largely unable to legally fly in the United States. In 2012, Congress passed the FAA Modernization and Reform Act (FMRA), which directed the Secretary of Transportation to “develop a comprehensive plan to safely accelerate the integration of civil [UAS] into the national airspace system” and complete a rulemaking to enable the civil operation of UAS. Section 333 of the FMRA directed the Secretary to “determine if certain [UAS] may operate safely in the national airspace system” before implementation of the plan and rulemaking. Consistent with these mandates, the FAA first took a case-by-case approach for commercial UAS integration, enabling entities to submit petitions (“Section 333 petitions”) to the agency for relief from regulations and requirements to enable the operation of UAS. The Section 333 petition process had its drawbacks: first, it was labor intensive for the FAA, resulting in long wait times. Further, the regulatory relief was based on the specifications provided by the applicant: wanting to use a different drone or expand to a new operating area required an amendment (and another several-month waiting period). And the relief the FAA was willing to grant was limited. For instance, early Section 333 grants prohibited UAS from operating above private property without express permission of the property owner. Similarly, UAS operators were required to have a pilot’s license from the FAA. Because there was no UAS license, the pilot had to be certificated in some type of manned aircraft, just to fly a five-pound quad copter. Despite its disadvantages, the Section 333 process enabled more than a thousand UAS operators to access the airspace for a wide variety of commercial applications. These early efforts helped gather critical safety and usage data, and allowed regulators to better understand the challenges and opportunities offered by drones. But it was clear that for the industry to take off, the FAA would need to meet the other aspect of its
mandate and enable commercial UAS operations in a blanket fashion. The Adoption of Part 107 Regulations for Routine UAS Operations The FAA did just that when it adopted its Part 107 regulations in June 2016. Taking just a year from Notice of Proposed Rulemaking (NPRM) to Final Rule (which is quite fast in regulatory terms), Part 107 enables routine (though limited) UAS operations without the need for advance FAA authorization. Part 107 permits the operation of small (below 55 pound) UAS as long as the operator complies with a series of conditions and limitations such as speed limits, minimum visibility requirements, prohibitions on flights over people and BVLOS, and restrictions on the simultaneous operation of multiple UAS, to name a few. The FAA also tackled its pilot certification problem, creating a new remote pilot certification that is more appropriately tailored to the knowledge, skills and level of experience required to fly drones. To enable operations that go beyond the restrictions in Part 107, the FAA established a streamlined process for granting waivers from the regulations. Entities can use an online form to request a waiver of most Part 107 restrictions, which the FAA will grant if it finds that the applicant has sufficiently demonstrated that its operations will achieve an equivalent level of safety as that which is guaranteed by the rule(s) from which waiver is sought. For nonwaivable rules (such as operations of UAS weighing more than 55 pounds), the Section 333 process continues to be available. The Remote ID Bottleneck and Future UAS Rule makings Like the Section 333 petition process before it, Part 107 was a huge step for the UAS industry, enabling a more broad-based introduction of UAS into the national airspace. However, the FAA’s plan for full UAS integration involves a series of incremental rulemakings to allow expanded operations, including flights over people, BVLOS and high-altitude operations. Although the FAA was prepared to move forward with this plan with an NPRM on flights over people in January 2017, concerns from the security community delayed the proceeding. The FAA agreed with these stakeholders that standards for the remote identification (“Remote ID”) and tracking of drones in flight were essential to future UAS integration, and that a rulemaking on Remote ID was necessary before any further rulemakings could be completed. Given the bottleneck caused by Remote ID and the delays
caused by the FAA’s decision to address safety and security concerns of relevant stakeholders, the FAA pivoted in its messaging to the industry. At its March 2018 UAS Symposium, the FAA’s annual conference on UAS issues, using the tagline “Open for Business,” the FAA urged the industry to approach the agency and seek waivers and exemptions for non-routine and expanded UAS operations. Just two short months after that conference, the Department of Transportation (DOT) announced that it sent two UAS-related rulemakings to the Office of Management and Budget (OMB) for review: the long-awaited flights over people NPRM as well as an advance NPRM (ANPRM) on “Safe and Secure Operations of Small Unmanned Aircraft Systems.” At least one of these proceedings is expected to tee up Remote ID, although the FAA has not changed its position that rules on Remote ID (and thus, likely, another NRPM) are necessary before the agency will issue rules on expanded operations such as flights over people. The Integration Pilot Program Another key piece of the regulatory puzzle for the UAS industry is the UAS Integration Pilot Program (IPP). Established last year pursuant to a Presidential Memorandum, the IPP created a path for state, local and tribal governments to partner with commercial entities to conduct expanded UAS operations to help tackle some of the challenges facing the FAA as it develops new regulations for the UAS industry. The program has four objectives: (1) testing and validating new concepts of BVLOS operations; (2) addressing ongoing security and safety concerns associated with operating UAS close to people and critical infrastructure, and ensuring effective communication with law enforcement; (3) promoting innovation in the UAS industry; and (4) identifying the most effective models of balancing local and national interests in UAS integration. In establishing the program, DOT further explained that the FAA will use the data provided by the IPP “to advance the overall state of the industry, including the development of enabling regulations that will increase other types of routine drone operations, such as: (1) [BVLOS]; (2) operations over human beings . . . ; and (3) package delivery . . . [.].” Last month, DOT announced the winners of the first round of IPP applications: 10 state, local and tribal government entities with myriad commercial partners. The winning governments’ operations will include, among others, BVLOS flights, flights over people, June/July 2018 I Docket I 27
UAS traffic management, medical device delivery, infrastructure inspection, search and rescue and emergency response, and nighttime operations. The Lingering Hobbyist Exemption Despite all the progress the Executive Branch has made integrating UAS into the national airspace, at least one issue will require Congressional involvement: the hobbyist exemption contained in Section 336 of the FMRA. While drones may seem like an entirely recent phenomenon, hobbyists have been flying radio controlled airplanes for decades. Section 336 was meant to protect these hobbyists from onerous regulations targeted at new drone users, and as such it forbids the FAA from enacting any regulations that apply to model aircraft. The provision was intended only to apply to recreational or hobbyist drone users that meet certain requirements, including that the aircraft be “operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.” The only organization that qualifies is the Academy of Model Aeronautics (AMA), a longstanding organization that has been establishing model aircraft guidelines for decades. There are two major issues with how the exemption has worked in practice: first, Section 336 has been popularly perceived as a carve out for all recreational UAS operators, even though the AMA’s membership is only 195,000, far short of the millions of hobbyists flying drones recreationally today. Although some nonmembers may be aware of and follow AMA guidelines, it’s more likely that most are not and do not, which means that millions of drones are operating outside of the law. The second problem is that as long as any drones are exempt from the FAA’s regulatory purview, the agency will be unable to impose comprehensive requirements necessary to address safety and security concerns surrounding UAS integration. For instance, Remote ID only works if law enforcement can identify any rogue drone, not just those that fall under Part 107. It is clear that the fix will need to be legislative, as the FAA has already tried to regulate hobbyists to no avail. In December 2015, the FAA published an “interim final rule” creating an online registration process for all owners of small UAS, including those flown for hobbyist or recreational purposes. A hobbyist challenged the rule, arguing that Section 336 prohibited a registration requirement for recreational drone users. The D.C. Circuit Court of Appeals agreed, rejecting the FAA’s authority to compel model aircraft 28 I Docket I June/July 2018
operators to register and vacating the interim final rule as applied to such operators. In response to the D.C. Circuit’s decision (Taylor v. Huerta), Congress passed legislation applying the registration requirements to hobbyists, but did so in a way that merely reinstated the FAA’s rules and did not give the FAA any additional authority. This means that to apply Remote ID and
other safety and security requirements to hobbyist users, Section 336 will need to be revised or repealed. Congress is currently in the process of passing legislation to reauthorize the FAA through 2023. The reauthorization bill passed by the House last month, H.R. 4, contains two amendments with competing visions for how to deal with Section 336. One amendment would clarify and tighten the modeler exemption, and require the FAA to create additional rules for “recreational UAS” — a category distinct from model aircraft. While this amendment expands the scope of the FAA’s authority to impose new requirements on model aircraft with BVLOS capabilities, it would continue to bar anything beyond registration for other model aircraft. A separate amendment would also tighten the scope of the model aircraft rule, but would give the FAA general authority to adopt regulations that are “generally applicable to unmanned aircraft,” including Remote ID and any “other standards” that are consistent with maintaining “safety and security” of the airspace — and it doesn’t create the third “recreational UAS” category. This latter amendment thus would give the agency authority to impose certain regulations on all UAS, regardless of Section 336. The fate of Section 336 remains undecided at time of publication, as the Senate is still considering its version of the reauthorization bill.
The Preemption Landscape A final area of which lawyers interested in the drone space should be aware is the proliferation of state and local UAS laws and the role of federal preemption. Numerous states and localities have imposed or have attempted to impose UAS-specific laws, ranging from prohibiting conduct done via UAS that is already generally prohibited, such as stalking or delivering prison contraband, to prohibitions on flights over specific locations such as schools or city-owned property, to outright bans of UAS flights within a city. Although the FAA has acknowledged that states and localities have some role to play in this space, such as the regulation of takeoffs and landings and privacy regulation, the FAA remains the sole regulator of the safe navigation of aircraft in our nation’s airspace. Despite considerable state and local regulation of UAS that raises serious preemption concerns, there has not been much litigation so far in this area. One case has resulted in a court decision: in Singer v. Newton, a UAS hobbyist challenged an ordinance by the City of Newton, Massachusetts which imposed a series of restrictions on UAS flights within the city, including a prohibition on operating drones over any property in the City — public or private — without express permission of either the City or the property owner. In
a win for the industry, the U.S. District Court for the District of Massachusetts invalidated this and other restrictions of the City’s ordinance, finding that these provisions were conflict preempted. Conclusion Given the rapidly evolving regulatory landscape, unique challenges created by gaps in federal legislation, and growing number of preemption issues, it is a fascinating time to be a commercial drone lawyer. As UAS innovations continue to take off and the drone industry reaches new heights, there is no shortage of legal issues to navigate. The only real concern is running out of good aviation puns. D Sara Baxenberg is an attorney at Wiley Rein LLP in Washington D C . S a ra p ra c t i ce s i n t h e f i r m ’s Te l e co m m u n i c a t i o n s , M e d i a , a n d Technology (TMT) group and is Lead Associate of the firm’s Unmanned Aircraft Systems practice. In that role, she serves as outside counsel to AUVSI on state and local as well as federal regulatory and legislative UAS issues. Sara also serves as Executive Editor of Wiley Rein’s Internet of Things blog, WileyConnect (wileyconnect.com), which offers fresh takes on regulatory issues related to emerging technologies, including UAS.
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LEGAL AFFAIRS Arnulfo D. Hernandez, Managing Partner of Hernandez & Associates, P.C., was named to Law Week Colorado’s 2018 Top Litigators. John M. McHugh, a partner HERNANDEZ of Reilly Pozner LLP, was named to the LGBT Bar Association’s Best LGBT Lawyers Under 40 — Class of 2018. Through this national award, John is recognized MCHUGH for his commitment to the Colorado LGBT community and his distinguished practice in complex commercial and civil litigation. Lorri T. Salyards, CLM has been named Executive Director of Lawyers Associated Worldwide. Salyards will be responsible for management of the business of the worldwide organization. SALYARDS RBF Law Attorney Kasey K. Johnson is the firm’s newest Of Counsel Team Member and has been named a 2018 Rising Star by Colorado Super Lawyers. Kasey recently celebrated her one year anniversary with RBF Law. The Colorado Supreme Court has appointed Jessica Yates, a partner at Snell YATES & Wilmer, LLP, as the state’s new attorney regulation counsel. Coan, Payton & Payne, LLC is pleased to announce that G. Brent Coan (managing member) along with Andrew S. COAN KLATSKIN Klatskin have been recognized by Super Lawyers Magazine as 2018 Colorado Super Lawyers. R. Clay Bartlett (equity member) has been recognized as a 2018 Colorado Rising Star. Maximo Gaytan has recently joined the CBA & DBA as the BARTLETT Accounting and Membership Clerk. Gaytan is responsible for accounts GAYTAN receivable, invoicing and HR duties. Fisher Phillips announced that Todd Fredrickson is featured in Chambers USA 2018.
FREDRICKSON
Kenneth L. Levinson’s eighth mystery eBook, The White Horse, is scheduled for release on July 12, 2018 through Uncialpress and Amazon. LEVINSON
CHANGES Jones & Keller is pleased to announce that Blaine K. Bengtson has joined the firm as an associate. Blaine focuses on litigation, primarily in areas involving commercial and environmental matters. BENGTSON G re e n s p o o n M a r d e r i s pleased to announce the expansion of the firm’s Corporate & Business practice group with the addition of partner Kevin Galligan and GALLIGAN associate Andrew Bechel. Mr. Galligan focuses his practice in corporate BECHEL and business transactions, including the formation and financing of emerging growth and technology-based companies. Mr. Bechel focuses his practice on estate planning matters including, integrated estate planning, offshore planning, transactional matters and business and tax planning. Christopher T. Radovich has re-joined Welborn Sullivan Meck & Tooley, P.C. as an associate in the Oil & Gas/Mineral Title practice group. Mr. Radovich began his career in the energy industry as a field RADOVICH landman, examining title and negotiating mineral leases and acquisitions in Colorado and Wyoming. Damian J. Arguello and Colorado Insurance Law Center have relocated to LawBank Uptown, 1888 Sherman Street, Ste. 200, Denver, Colorado 80203. The firm’s phone number has stayed the same. Shapiro Bieging Barber Otteson ARGUELLO LLP (SBBO) announced that attorney Garth A. Gersten has joined the Denver-based law firm. In his insurance coverage practice Gersten represents and advises policyholders in their disputes with GERSTEN insurers. Spencer Fane LLP is pleased to welcome Associate
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 csmith@cobar.org. Announcements will be placed on a first-come, first-served basis. 32 I Docket I June/July 2018
LEGAL AFFAIRS Katherine Whitney to the Real Estate practice group in the firm’s Denver office. Spencer Fane LLP is pleased to announce the addition of Partner Troy Rackham to the Litigation practice and Associate Nicole Finco to the Special Districts practice in the firm’s Denver office. Tenenbaum Law is pleased to announce that R. Stephen Hall has recently joined the HALL firm. Stephen’s two decades of experience in trial and appellate law brings depth and expertise to the firm’s commercial and securities litigation practice. Miller & Steiert is pleased to announce that, after nearly 45 years at Holland & Hart, Gregory A. Eurich has joined the firm as a Director. Greg will continue to practice management employment law.
IN MEMORIAM
MACDOUGALL
On behalf of the Water Law Section, we are saddened to pass along the news that Sandy MacDougall, a dedicated and valued member of our Section and a friend to many of us, passed away on April 18.
EURICH
COURTROOM SPACE The Colorado and Denver Bar Associations have secured space at the Denver City and County
Financial Assistance for Colorado Lawyers
WATERMAN FUND
building in courtroom 117 for members’ use as a
Provides financial assistance for “aged, infirm,
practice space.
or otherwise incapacitated lawyers who have
To reserve time email hfolker@cobar.org.
practiced in Colorado for a minimum of ten years.”
A 24-hour notice is recommended. The courtroom
denbar.org/members/waterman-fund
is available weekdays from 8 a.m. to 4 p.m.
Waterman Fund 1900 Grant St., Ste. 900 Denver, CO 80203 PHONE 303-824-5319 I FAX 303-861-5274
Courtroom 117 is not available on Tuesdays and Thursdays and every third Wednesday of the month.
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PICTURE THIS LEGAL AID FOUNDATION 2018 ASSOCIATES CAMPAIGN The success of the Legal Aid Foundation’s 2018 Associates Campaign was celebrated at a reception hosted by Hogan Lovells on April 4. The Associates Campaign raised a record $192,000 for legal aid during the month of March, with 61 firms participating and over 1,300 individuals from the legal community donating. Colorado Supreme Court Justices Brian Boatright, Richard Gabriel, Melissa Hart, and William Hood, along with U.S. Bankruptcy Court Judge Kimberley Tyson, presented the awards to firm representatives. Justice Melissa Hart (second from right) presented the highest per capita associate gift award in the larger firms category to Brownstein Hyatt Farber Schreck representatives Kate Stevenson, Michael Zehner, Tai Pallacio, and Amanda Houseal.
Presenters & Attendees.
ALA–MILE HIGH CHAPTER LAUNCHES STRATEGIC RELATIONS COMMITTEE On April 18, the Mile High Chapter of the Association of Legal Administrators started its 2018–19 Board year with the launch of its new Strategic Relations Committee. The purpose of this initiative is to form strategic alliances with other Colorado legal associations to tackle shared issues affecting the legal industry’s management professionals. Building on its strategic relationship with the Colorado and Denver Bar Associations, the Mile High Chapter is planning an outreach campaign on various fronts to better help law firms and corporate and governmental legal departments find constructive solutions to an ever-changing legal marketplace.
Jerry McPeake and Jessie Meier, chairs of the Strategic Relations Committee.
Mile High Chapter’s 2018–19 Board.
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COLORADO SUPREME COURT PRO BONO SERVICE CEREMONY On April 19, the Colorado Supreme Court held its annual Pro Bono Service Ceremony to honor those firms, government offices, and in-house counsel groups that have successfully committed to the Colorado Rule of Professional Conduct 6.1(a) goal of performing 50 hours of annual pro bono legal service, per attorney.
DENVER ESTATE PLANNING COUNCIL On May 2, the Denver Estate Planning Counsel hosted former Attorney General John Ashcroft at their annual meeting. General Ashcroft spoke on protecting individual liberties while enhancing national security.
Doug Hoak, Lisa Davis, General Ashcroft, Kim Eilber, and Jeff Barker.
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