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Dumb Stuff at City Hall

Posted by NOTLEGALROADKILLYET on Wednesday, September 27, 2006 8:43:25 PM
A charade by the mayor and the Parks Board.  This one came out right!
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The Problem With Blogs

Posted by NOTLEGALROADKILLYET on Wednesday, September 27, 2006 8:19:37 PM
The problem with the blog format is that people can jump into the middle of an argument that the author is making without realizing that it is the middle and that they are missing the context entirely.

More than a month ago, for example, I wrote that it was not my intention to attack a single judge, that while I had no intention of voting for his retention, this blog was in no way a campaign instrument against that judge.  I believe that a VERY careful examination of this blog would reveal that I have neither identified him, nor suggested in the slightest way that the citizens of the 4th Judicial District should vote against retaining him.

It isn't that I think he shoudn't be thrown out of office, because I do.  I have made a purely tactical decision that this blog will have much more credibility if I am seen as going after my real target, the legal ethics system and its creators, the State Supreme Court, rather than a single judge.

In fact, if I were to so much as suggest a campaign against my judge, my friends in the legal community could immediately dismiss me as an angry litigant with a complaint against a single judge.  I am instead an angry litigant who believes the ethics system is designed not to function in a way that protects citizens.  It is much harder to dismiss that kind of criticism.

Yes, I am being critical of my judge.  A really good judge is capable of ensuring that court rules are followed even when they are designed not to work.  I might well have never discovered how flawed the SYSTEM was if I'd had a different judge, a no nonsense judge.  That didn't happen, so now his performance is the vehicle of my criticism.

One of the things that forces someone like me to concentrate on a single judge is the decision by the State Supreme Court to allow District Chief Judges to charge for what should be public documents.  Ours charges $20 an hour plus 75 cents a page, so I don't have much data and am unlikely to get much data on how other judges conduct their pre-trial business.  The Supreme Court claims to have made this decision to prevent identity theft, but there has never been an instance of such an abuse.  I have two choices, examine my judge's conduct or be silent.  Silence won't cause change.
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It's 3 A.M.

Posted by NOTLEGALROADKILLYET on Wednesday, September 27, 2006 5:11:16 AM
My subconscious does my best thinking, so we will let it work for a few minutes:

1.  This blog is not an attack on a single judge.  It would be extremely easy to do that, but it would discredit me to do so.  The reason my judge keeps popping up is that he and the defense attorney have inadvertantly provided a wealth of material and knowledge that illustrate the points that I am trying to make.

2.  This blog should be seen as an attack on the whole legal ethics system which in Colorado appears to have few redeeming features.  My long term goal is to strip the State Supreme Court of the power to make and enforce ethics/court rules and place that power in the hands of non attorneys, very similiar to a scheme currently used successfully by the real estate profession.

3.  I do need to discuss the qualifications that make a good judge.  I stated earlier and then retracted a comment that my judge was unqualified.  In part I did that because it could be seen as a personal attack and could become the subject of what someone else called cardboard box litigation.  However, I think a case can be made that the need qualifications go well past those the state lists-for example the mental discipline to read and comprehend accurately multi-page arguments accompanied by the discipline to issue orders that are sufficiently detailed that they inspire confidence that the arguments are understood.  If a judge can't or won't do those two things, it is difficult to see how he can claim to be qualified, regardless of his education and experience.  We will explore what I told the retention commission on that subject.

4.  I need to renew and make a series my "Cliff's Notes" post.  It would help keep people from getting the wrong idea as to what I am trying to accomplish with this blog.
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A Low Risk Attorney Scam-Part 4

Posted by NOTLEGALROADKILLYET on Tuesday, September 26, 2006 11:43:33 PM
THIS IS AN INCOMPLETE POST.  IT WILL BE COMPLETE WHEN THIS MESSAGE IS REMOVED, PROBABLY FRIDAY.  SORRY FOR THE INCONVENIENCE.

The premise is of this series is that it is very easy for an attorney to work with his client to stall a lawsuit indefinitely if both are willing to perjure themselves by jointly claiming that the attorney wasn't communicating with his client.  This scam carries almost no risk to either the attorney or the litigant.

If one took the ethics rules, both lawyer and judicial, at face value and assumed that they would be enforced as they seem to read this scam would be impossible to execute and dangerous to try.  By now, even a casual reader of this blog knows that isn't happening, at least in Colorado.

The ethics and court rules that should stop it are RPC 1.3, discussed here; RPC 3.2, discussed here, CRCP 251.4 discussed here, and the Colorado Code of Judicial Conduct Canon 3(B)3 discussed here.

Colorado has a law against perjury which would also stop this scam.  I have read that it has never been enforced in civil litigation, but never is a long time.  I will eventually (2007) do a series on perjury, but I have to get much smarter on it.  For now, let us just say for the sake of discussion that the criminal law against perjury is sufficiently ineffective that it would not be a deterrent to a scam involving civil litigation,

The point of this post is that there is no ethics rules deterrent that will consistently prevent a scam of any kind, even a long running scam such as the one I describe.
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Sovereign Immunity & Legal Ethics

Posted by NOTLEGALROADKILLYET on Tuesday, September 26, 2006 9:39:35 PM
This may be hard to believe, but I continue to have several friends who are lawyers, both in and out of practice.  Not all know about this blog, but I think all of those who do will quickly admit that their profession has some problems.  I think it can be safely said that ethical attorneys have as strong a dislike for unethical attorney conduct as I do.

I have no intention of trying to sue the state over the ethics issue.  I am tired of lawsuits.  Even so, I will be asking each of my lawyer friends if they believe the state even CAN be sued over its legal ethics system.  Last week, I asked the first of my friends and got the answer I expected:

Her:  "Are you familiar with the concept of the "Sovereign?"
Me:  "The King can do no wrong."
Her:  "That's 'Sovereign Immunity' and it can only be waived by the Legislature."
Me:  "Any idea if the Legislature has waived it"
Her:  "Probably not"
Me:  "So you think people in my situation have no legal recourse?"
Her:  "The Founders intended that if you didn't like the Sovereign's decisions, you should try to change the Sovereign."

We moved on to other subjects, but it has since occurred to me that I should have asked if she was voting for judicial term limits.  Somehow, I doubt it, but that was a very good argument for it.
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If You Were to Meet Me . . .

Posted by NOTLEGALROADKILLYET on Tuesday, September 26, 2006 8:52:55 PM
If you were to meet me on the street, with 10 other folks my age, I doubt that you could pick me out.

I know that I am a forceful, perhaps even a humorless writer when it comes to issues I feel strongly about.  I can't hide the fact that I believe I was assigned a judge who appears to have demonstrated little or no interest in doing his job carefully, at least in my lawsuit.  I can't hide the fact that I believe that the 4th District Judicial Retention Commission did the public a terrible disservice when they decided not to inform the public what had happened in my lawsuit.  They put their own individual and collective reputations at the mercy of a judge who apparently will continue to ignore attorney misconduct and their reputations will and should suffer for it.  I can't hide the fact that I believe the State Supreme Court has maliciously created a set of nice looking but entirely toothless ethics rules, and I have suffered for years because of it.  I could go on . . .

Even so, I find writing about these and other issues to be wonderfully therapeutic.  Others may not find my writing exactly therapeutic, but I do.  So, if you are looking to identify me on the street, look for the happy, smiling grey headed guy who laughs often and loud, not the puritanical, humorless, and angry fellow you may think you see in these posts.

No, I am not one heartbeat away from a heart attack, and if that bursts your bubble, so be it.
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If you saw an earlier version of this post tonight, I wrote it a bit stronger than I meant to.  It would be unwise of me to claim that the judge in question was "unqualified" when ten people who are much smarter than I am think him "an asset to the community."  I retract the assertion.  I think I made a good case that this judge was not careful in my Retention Commission input, and since we are talking about my "belief" that can and will stand.
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Off Topic-Math

Posted by NOTLEGALROADKILLYET on Tuesday, September 26, 2006 7:14:07 PM
And I'd bet you didn't know someone was looking for a prime number with 10 million digits for a $100,000 prize.  To put this into perspective, assume 50 lines of 100 digits per page, or 5000 digits per page, it would take 2000 pages just to print the number. 
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Trial Dates Come and Go

Posted by NOTLEGALROADKILLYET on Tuesday, September 26, 2006 12:37:14 AM
Last week my attorney and my judge held the fourth or fifth pre-trial conference on my lawsuit.  The defense attorney not only didn't bother to show up, when the law clerk called him, his phone was disconnected.  So much for that trial date.

It didn't much matter.  We have not one more discoverable document than we had when the judge reversed his reluctant decision to issue a default judgment because he couldn't see a pattern of dilatory behavior 8 months ago.

If the past is prelude, the judge will once again ignore his ethical and court rule requirements to sanction and report this attorney.  (Edited to prevent the judge from doing what he has yet to do over a three year period and then using his action as a basis for a lawsuit.  Do I think this could happen?  You betcha-recall that while litigants cannot sue judges for their performance, judges can sue litigants for commenting on it.)

There are two sets of folks who ought to be squirming over this event.  One is the local Judicial Retention Commission who couldn't bring themselves to inform the public of this judge's performance in my lawsuit.

The other is the State Supreme Court which is directly responsible for the fact that this judge is tolerating this behavior and I am powerless to do anything.  Well, not totally powerless.  I blog!

This is exactly why we need judicial term limits, and much more!
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Hamdan Strikes Again-Harder

Posted by NOTLEGALROADKILLYET on Monday, September 25, 2006 11:25:32 PM
In Hamdan and the Sunset of Sovereignty, Andrew C. McCarthy produces a heavy article on the impact not of Hamdan itself, but of the discussion in legal circles it is generating.  It is pretty scary stuff:

"The cacophony over wartime interrogation tactics and military-commission trials obscures a more profound issue: the sunset of national sovereignty itself.

The cause of the ruckus, the Supreme Court’s decision in Hamdan v. Rumsfeld, is a cataclysm. Increasingly, the ruling is championed as holding that treaties like the 1949 Geneva Conventions are not really compacts between nation states; violations of them are not, as they have been understood from time immemorial, merely grist for diplomatic protest. Instead, Hamdan is being taken to mean that treaties inure to the benefit of individual persons — even if they are jihadists pledged to the annihilation of the West and its human-rights values.

. . . But if treaties were now to be understood as creating universal individual rights, the sovereign nation state, the foundation of the security on which our liberty depends, will be gravely imperiled.

The first grievous casualty is our own judiciary. The Framers conceived American courts as a core component of our system, the bulwark ensuring that Americans were protected from oppressive action by their own government. Yet, now they are morphing before our eyes into a supra-tribunal: a forum standing above our system, enabling all the world — including those energetically seeking to kill Americans — to press its case against the United States.

It’s a suicidal trend, and the Hamdan debate has pushed us further down its path than Hamdan itself did."
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This is the mischief that a lawless decision by a lawless court generates.  And still the Republican Party is silent.
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Hugh has it Right: Blog

Posted by NOTLEGALROADKILLYET on Monday, September 25, 2006 11:24:32 AM
Hugh is suggesting today that folks who want to impact elections can do so by starting and working blogs.  I think that is right.

There are several things I have learned since I started mine. 
1.  Don't be concerned that no one comments.  Expect that.  I prefer it.
2.  He suggests pinging friends and family.   I think many email spam filters filter out townhall blogs.  Send them a separate email from your own account with a link to what you want them to see.  You can create a link to any post by clicking on the title of the post which separates it from the blog as a single entry.  Then select the address from your browser address window, copy it, and paste it into your email.  It is that simple.
3.  If you are trying to give someone your blog address, remember to preface it with http// or the blog address will be shortened to "townhall.com."
4.  While the post immediately below is long, it has a special purpose and will be read carefully by those who care about the subject.  Otherwise, remember that folks like (and are more likely to read) short posts
5.  Ctl K is your best friend.
6.  If you have a paste that hangs up, move your mouse.  It's a bug, but a tiny one.
7.  I found a bug in "Save Draft" that published an item I wasn't ready to publish.  Take care.
8.  The blogatorium is your friend.  Know that it uses the title and the first line of your blog, so pithy titles and pithy first lines are a must.
9.  This seems so obvious, but fill in the "Post Title" block first.  If your post has no title, you can't edit it and no one else can link to it.  Twice I've had to delete posts and rewrite them because I failed to create a title.
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Designed to Fail-Part 4

Posted by NOTLEGALROADKILLYET on Monday, September 25, 2006 10:53:15 AM
This is a multi-part series with the premise that the legal ethics system appears to have been intentionally designed to fail.  It begins here.  The last post, part-3 is here.

One of the better ways for the legal profession to enhance its revenue stream is to stretch lawsuits and legal procedures out as long as possible.  Attorneys on both sides benefit. The Colorado Supreme Court is against this practice without being against it.  Huh? 

The Colorado Rules of Professional Conduct, aka RPC appear to have been adopted in 1992.  Rule 3.2 clearly outlaws the practice

Rule 3.2 Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Sounds good, eh?  This "COMMENT" sounds even better:

"Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose.  It is not a justification that similar conduct is often (always) tolerated by the bench and bar. . ."

There was a local "committee comment" as well:

" . . .it places on attorneys a positive obligation to make reasonable efforts to expedite litigation and it also makes clear that delaying tactics engaged in solely for the purpose of benefitting a client are improper."

OK, I admit striking out "often" and substituting "always," but I had good reason.  Despite the fact that the Colorado Code of Judicial Conduct Canon and the CRCP requires judges to both sanction and report ethics violations, The American Legal Ethics Library states: "There have been no reported decisions or formal opinions involving judicial enforcement or sanctions for dilatory tactics under Colo.RPC. 3.2, other than in the Rules of Procedure Regarding Attorney Discipline"

It further states: "Neither judicial decisions nor formal opinions have meaningfully explained the requirements of Colo.RPC. 3.2 or defined what constitutes dilatory tactics."

In short, we have a rule that is at least 14 years old, and no case has come before the Supreme Court that would force it to define dilatory tactics, and no District Court has ever sanctioned an attorney for dilatory tactics.  While the Legal Ethics Library uses the qualifier ". . . other than in the Rules of Procedure Regarding Attorney Discipline," it lists exactly two 1990's cases and nothing past 2000.  I found two other cases from 1993.

Based on the lack of case law, and the timing of what little there is, I am going to speculate that in 1993, the State Supreme Court created a court rule requiring dilatory practices complaints be directed through the trial judge.  At the same time, it may have also made a decision not to use ethics machinery to force judges to follow the rule.  Because the state Constitution requires judicial ethics issues be secret, there would be no way to check this tactic or for the public to know it was happening.

Not only is this rule Designed to Fail, it appears that the design was implemented in 1993. 
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It is my intent to explore the ethics rules one by one to see if they protect the public.  I wanted to examine this one out of sequence because this analysis is useful for my other series, "A Low Risk Attorney Scam"
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I am mystified

Posted by NOTLEGALROADKILLYET on Sunday, September 24, 2006 10:44:25 PM
When I read stuff like this. 

Congress is once again trying to exert its constitutional powers to limit court jurisdiction, but they are trying to do so in a stealth manner. 

What happened in Hamden should be denounced from the rooftops if Congress doesn't want it to happen again.  Where is the Chairman of the Senate Judiciary Committee?  He is so concerned about a President of his own party trying to usurp Congressional perogatives, but is silent when the Supreme Court does so in a plainly unconstitutional ruling.  He was so concerned about the power of stare decisis when the confirmation of conservative justices might threaten Roe, but he is silent when five lawless justices ignore the plain meaning of the Constitution and previous supreme court rulings (at least three). 
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Presiding Disciplinary Judge-Building Block Post

Posted by NOTLEGALROADKILLYET on Sunday, September 24, 2006 8:42:33 PM
Over the last 10 days, I have heard four different people on public TV make various claims about the need for judges to be independent.  Two of the folks were Justice Breyer and former Justice O'Connor on the Aaron Harber Show.  The other two were lawyer opponents of judicial term limits.

While I find Justice Breyer to be a personable, well spoken, and well meaning individual, I find much not to trust in the mechanics of his execution of his responsibilities.  He seems not to feel that the Constitution or stare decisis places any leash on his judicial perogatives.  That is a dangerous attitude for a judge, and for that reason his argument for judicial independence fell on my deaf ears.

It is fine to argue for an independent judiciary, but I seemed to recall that the State Supreme Court had established a judge who was anything but independent of that court.  

CRCP Rule 251.16 establishes the Office of the Presiding Disciplinary Judge whose rulings can only be appealed to the Supreme Court.  The judge's budget is set by the Supreme Court.  Yes, that is the epitome of judicial independence.  Please save me from this argument.
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CRCP Chapter 20
Building block posts are designed to be used in other documents.

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September Dixon

Posted by NOTLEGALROADKILLYET on Saturday, September 23, 2006 10:27:20 PM
First, let me state that the only thing I know about the subject is what I saw in the commercial, and I've now seen the commercial six times today. 

So that everyone can get in on the fun, I've found a transcript, an analysis, and the video.  If it is "controversial" it is because it will be extremely effective.  Quoting the author:

"This is one of the most powerful political attack ads I've seen in years. It's reminiscent of the famous Willie Horton ad in the 1988 presidential race."

As much as this guy tried to soft-pedal the analysis, his bottom line is that the ad is true as it appears.

Ritter's ad is a laughable Ozish "Pay no attention to the man behind the curtain" kind of response:

"NEWSPAPERS CALL ATTACKS ON BILL RITTER'S RECORD AS DISTRICT ATTORNEY, MISLEADING, DISTORTED, TWISTED."

The newspapers the ad refers to, including the ultra liberal Boulder paper, are so far to the left that they consider Ritter a "moderate," though I have no idea why.  They have in no way been friendly to the Beauprez campaign.  The analysis omits that information, although most knowledgable people in Colorado would know it. 
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Loyalties Clash? Lamborn vs. Fawcett

Posted by NOTLEGALROADKILLYET on Saturday, September 23, 2006 6:02:16 PM
The Rocky is trying to make a race in the 5th CD where none exists, or at least none should exist.

I have a neighbor, a registered Republican.  When I asked him earlier this summer to volunteer to help Beauprez, he told me that he was really a Democrat trying to make trouble for the Republicans in the primary.  His "candidate" was Lamborn as the individual most likely to be beat by the Democrat.  It wouldn't totally surprise me if  Lamborn won on the strength of this guy and his friends.  That is beside the point, though.  Lamborn won, and Republicans should support him.

Now, when I see the press trying to promote Fawcett's candidacy, I am more than a little suspicious as to what is going on.  

The argument that the Rocky makes, that Republicans will vote for Fawcett because Congress lacks military experience is a false one.  During Viet Nam, 75% of Congressmen were veterans.  That didn't prevent Congress from allowing Johnson to micro manage the war in a way that was designed not to win, but only to avoid losing.  That's a sure way to lose as history demonstrated in Viet Nam and elsewhere.

Murtha wants a repeat of Viet Nam.  Fawcett admires Murtha enough to bring him to Colorado Springs to campaign for him.  I don't see many Republican veterans voting for Fawcett, despite the Rocky's attempt to promote that outcome.
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