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A Social Club With a Title

Posted by NOTLEGALROADKILLYET on Friday, September 01, 2006 11:59:41 AM
OK, so the last post wasn't all that funny.  I thought about deleting it this morning, but then I decided to tell more of the story:
 
I took great care when I prepared my judicial retention commission public input on this judge, not only to state to the commission that he wasn't protecting the public, but to also provide to it the both cut and paste versions of the rules that required him to do so, and documentary proof that he wasn't following those rules.

For example, I told the commission that the combination of court rules and ethics rules made it impossible for a litigant who faced unethical conduct from an opposing attorney to stop that conduct without active intervention from a trial judge.

I told them that I couldn't sue the attorney for misconduct or the damages he had caused me; that if my attorney made an accurate complaint to the judge, he could be sued for doing so; that ethics rules actually attempted to keep an attorney from informing the judge of alleged misconduct; that Attorney Regulation has no jurisdiction; and that no action the judge had taken over a three year period had convinced the opposing counsel that he had an obligation to act ethically.

I told them that the judge had difficulty making decisions; that he had appointed a special master to make a decision he should have made; that he failed to supervise that master over a many month period; that he had been told at least twice in court documents that the master wasn't doing his job; that the judge then claimed in a later ruling that no one had told him that the master wasn't doing his job.

I told them that the judge had for two years failed to rule on a motion to strike; that he had been told in court documents not only that he had failed to do so, but that the defense was using his failure as an excuse not to provide discovery; that when the defense finally admitted 27 months later that it indeed using the judge's failure to rule as a shield, the judge tried to dispose of the matter in with a two sentence comment when he granted the motion to set aside the default; and that even that comment had not been sufficient to cause the defense to provide discovery two months after the ruling.

If I didn't flat out tell them that I thought I had been the victim of what I am calling "A Low Risk Attorney Scam," I certainly implied it; that both the attorney and the Defendant had participated from the beginning in making claims to be out of town to avoid providing discovery; that the claims were not believable (a 40 plus day Florida vacation at a time when Defendants children would have missed three weeks of school); that the court had evidence that made it appear the Defendant was probably never in Florida at that time; that the legal arguments covering this period of the lawsuit did not match the affidavits provided by the defendant; that the Defendant's two affidavits conflicted with each other; that the defendant's second affidavit didn't match with the legal arguments his attorney was making in 2003; that the attorney had appeared to file a false affidavit claiming to remember paying a $150 judgment when he had not, and still has not; and that the attorney's second affidavit did not in any way support the defendant's second affidavit, probably because it wasn't believable given the court record.

I provided the commission court papers that laid out in gruesome detail the unethical stunts that this attorney had pulled, including trying to file a "secret," misleading motion; trying to run up my bill with a late filing of a motion for protective order that he had prepared the day before, and much more.  In 2003, the judge "fined" the defense $150, for one of their early stunts, but defense appeared to take it is a signal that the judge would tolerate anything, and to date, the judge has not even enforced payment of this "fine" despite being told three times that it has not been paid; and much, much more.

I told the commission that I was concerned that it would be easy for someone to claim that I had made but not proven allegations against this judge, so I provided them with almost 200 pages of court documents to support these allegations.

A judicial retention commission which receives this kind of input, and chooses to take no action because they consider the judge to be "an asset to the community" isn't attempting to protect the public.  Rather it is simply a social club with a title.

 
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What Does . . .

Posted by NOTLEGALROADKILLYET on Friday, September 01, 2006 12:21:24 AM
member of the local judicial retention committee do with public input it finds inconvenient to its world view?

ANSWER:  Declare the judge "an asset to the community" and pretend it never took input.

(If you don't think this is humorous, neither do I.)
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UCCS Bias Against National Guard Soldiers?

Posted by NOTLEGALROADKILLYET on Thursday, August 31, 2006 11:58:27 PM
I don't know if the University of Colorado at Colorado Springs (UCCS) is biased against students who have short notice military committments, but it appears the students think so.

Whether professors who pull this stunt are liberal or lazy, the UC Regents should be looking into this.
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Short Blogroll

Posted by NOTLEGALROADKILLYET on Wednesday, August 30, 2006 11:51:08 PM
   I am just learning this blogging stuff.  I have been looking at other folk's blogrolls, and they are so long that I don't want to go down them.  This blog is about the law, or if you like, that the law is an ass.  It appears to me that if I list blogs that don't address the law or Colorado state politics, I am misdirecting my readers.

  If you have a blog and list me on your blogroll in the expectation that I will reciprocate, I fear you will be disappointed.  On the other hand, if you routinely comment on the state of legal ethics, the law, or politics, you will likely be blogrolled.

  I am using what few political connections I have to promote this blog.  Eventually, I will suggest to legal ethics professors that this might be a good source of material.  Bar Associations will be good candidates for the material herein as well.
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A Low Risk Attorney Scam PART 2

Posted by NOTLEGALROADKILLYET on Wednesday, August 30, 2006 11:09:30 PM
I am normally going to be very critical of the state supreme court, but not tonight, at least for a few minutes.

Several years ago, a litigant hired an attorney to defend him against a charge that isn't important to this discussion.  What is important is that litigants do not receive information on court filings or rulings, except through their attorney.  This particular attorney was preoccupied, and failed to forward the documents to his clients, or take any action to protect his clients.  This went on for a long enough period of time that the Defendant was slapped with a default judgment for more than $200,000.

When the Defendant finally became aware that the Plaintiff had secured a default judgment, he attempted to get the judgment reversed.  The case eventually made its way to the Colorado Supreme Court, which had to decide if, and under what conditions a default judgment could be reversed when obvious attorney misconduct had occurred.

To its credit, it did reverse the judgment and ordered the matter to trial.  In that way, it protected the public.  However, it didn't think through the implications of the case law it had created.  What it really created was a road map for a Low Risk Attorney Scam, which is definintely not protecting the public.

Any attorney who has the courage to risk the likely penalties for following this road map might stall the lawsuit a year before a judge who was paying attention, and two years before one that wasn't. 
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In Part 3, we will look at the Attorney Regulation case law to determine what the likely penalty might be, and whether that penalty is sufficiently severe to discourage this strategy.  (Hint, you will die laughing)
For those attorneys who may wish to employ this strategy, I believe the case law is Craig v. Rider.  I need to do some research to confirm that information.
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Democrats Money Woes

Posted by NOTLEGALROADKILLYET on Wednesday, August 30, 2006 9:24:18 PM
I wish Whizbang had a permalink feature.  Quoting from today's (Aug 30) post entitled "Democrats Money Woes:"

"Whether it is due to chronic under representation in poll samples or some other reason, Republican prospects in general seem to improve the closer to the election. Our side closes well. Additionally, the get-out-the-vote machinery is substantially intact, and Republicans tend to comprise a larger share of the electorate in midterms than in Presidential election years."

They weren't talking about Beauprez, but they could have been.  I think this is exactly what will happen. 
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Trial Lawyers

Posted by NOTLEGALROADKILLYET on Wednesday, August 30, 2006 2:49:20 PM
Thanks to Whizbang for pointing this out.  As long as the Congress remains in Republican hands, the possibility of Tort Reform, and Legal Ethics Reform exists.  Of course, the Trial Lawyers want to extinguish that hope.
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An Undecided Delegate

Posted by NOTLEGALROADKILLYET on Wednesday, August 30, 2006 10:31:50 AM
In this time of polarized politics, I am an unusual political activist.  I am not a one or two issue individual.  While I have views on the hot button issues of the single issue voters, I have never once cast a vote for or against a candidate because of his stand on one of those issues.

There are two things that will turn me against a Republican, and only two things.  The first is ethics.  In my life, I have only voted for one Republican who I knew had lied to me, and that was GHW Bush.  I did so then with great reluctance, and only because I felt the two alternatives were worse and I didn't not want to pull a 1976 again.

The other thing that turns me off is single issue candidates.  Once those folks are elected, they don't have a rounded view of their constituent's needs and believe they were elected to serve only those folks who share their view.

I was a 5th District delegate this year, and I had a heck of a time deciding who to support.  I was predisposed to support Lamborn, but I didn't like what I was reading about him in the G-T.  They were painting him as a one issue (Pro-Life) State Senator.  The G-T led me to believe that 25% of the bills Lamborn had sponsored were Pro-Life bills an that few had passed.  I decided to support Crank.

Inevitably, Lamborn called me-he tried for a month before he finally got me, which wasn't his fault.  I told him that I was supporting Crank and why.  He said that he was a lot less one sided than the G-T was making him out to be and asked if he could send me a list of the bills he had submitted.  I got the list.  It demonstrated that Lamborn had indeed been a well rounded State Senator, and he got my vote at the assembly.

I am troubled that a few county Republicans are publicly supporting his Democratic opponent.  I think it might be useful if they did what I did.  Talk to the campaign and ask for a list of the bills he sponsored over the twelve years he was in the legislature.  I think they will find, as I did, that Lamborn is not the single issue candidate he has been made out to be.
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A Campaign Tale

Posted by NOTLEGALROADKILLYET on Wednesday, August 30, 2006 9:46:06 AM
One of my biggest concerns in writing this blog is that I might be mistaken for a Beauprez campaign insider, and that I am somehow authorized to speak for the campaign.

I want to tell a funny story on myself as a means of dispelling that notion.

A week ago Monday, I was in the headquarters making a phone call from the phone bank area, which is separate from the staff area.  The phone system is a bit quirky, and if one is not careful, a person making an outgoing call can inadvertently answer a call before the phone rings.  It had happened to me before, and I had learned how to put a call on hold, but not how to transfer a call.

I picked up the phone to make a call and knew immediately that I had an incoming call, so I said "Beauprez for Governor."  I should have identified myself, but I didn't.  After a moment's pause, a gentlemanly voice said "This is Bob, may I speak to John."  Well, there is only one Bob and one John in the campaign, so I put Bob on hold and went looking for John.

The problem I had was that after working two and a half months in the campaign, I hadn't bothered to learn who John was, or even where his office was.  (I know that sounds dumb, but my philosophy about volunteering is that volunteers have very little reason to interact with the staff outside those whose job it is to put them to work, and that is how I have operated.)

I solved the problem the obvious way.  I saw a small gaggle of staffers and said "Bob is on the phone and he wants to speak to John.  Can someone point me at John."  It turned out that John Marshall was in the gaggle, and someone took a moment to introduce me to him before he went to answer Bob's call.  I was embarrassed.

If you are reading this blog and mistake ANYTHING in it as my speaking for the campaign, consider this tale.  It is unfortunately, true.
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Life is Good!

Posted by NOTLEGALROADKILLYET on Wednesday, August 30, 2006 9:08:09 AM
1.  I finally got logged on to my blog after 8 hours of trying.

2.  The D-11 Recall election did go away, at least for my purposes.  It has been scheduled for December, which means stray Dems who might have been drawn to the polls in November may not come.

3.  Hefley both decided not to run as a write-in and decided to work for Beauprez.  Hefley would do well to endorse Lamborn as well.  Elder statesmen, and that is what Hefley now is, can only be tarnished by failing to endorse the party's nominee, and being so public about his decision not to endorse.  I hope he changes his mind.

4.  Trailhead is on the air with a very effective anti-Ritter ad.  Until now, Ritter has been defined as a moderate, effective prosecutor.  He is neither.

5.  As the election draws near, the polls will close.  Polls in Colorado are notoriously inaccurate, and usually skewed Dem.  For example, Allard was supposedly in a tight race four years ago and won by six points. 

6.  Yesterday was a particularly good day on the phones for me.  I converted a Ritter voter, identified two volunteers and a potential third, and accidentally solicited a campaign donation when the person I was talking to told me he didn't have time to volunteer but would donate.  Volunteers win elections, not candidates.

7.  And, finally, I got to see a very upbeat assessment of the campaign, written by John Marshall.   Normally volunteers wouldn't see this kind of stuff, but the campaign made an exception for this particular document.  I asked for and got permission to quote from it:

"Bill Ritter has almost zero money spent against him and is yet to be defined in much of Colorado . . . once Colorado voters ARE introduced to Bill Ritter's weak and dangerous record as a prosecutor and a lifetime Denver lawyer, they will no doubt break against him."

and:

"Bill Ritter, like any trial lawyer is trying to change the evidence to win a case.  He's pretending to be pro-business and for responsible policies, but his record shows that he cuts deals not only with criminals, but with labor unions, special interests and anyone he can."

I liked the last quote because it epitomizes both what is wrong with Ritter and what is wrong with our court system.  It fits perfectly with the theme of this blog.
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Political Sinners, Repent!

Posted by NOTLEGALROADKILLYET on Tuesday, August 29, 2006 10:11:53 AM
 Last week, a good friend and I spent two hours discussing national and local politics, with a bit of history thrown in.  I very much enjoy conversations with her because, while we don't always agree on issues and candidates, we are very civil in our disagreements, and each learns something from the other.

When it came to the 5th District, the one thing we agreed on was that it didn't much matter who was nominated to replace Hefley.  Any of the six candidates would have done a fine job, and on the votes that would really matter, all would have probably voted the same.

Frankly, I don't think any of the six would have voted any differently than Hefley.

Now comes this morning's trial balloon that Hefley doesn't like Lamborn and may do a write-in campaign to beat him. 

I have another good political friend who is a party activist and heavily supported Lamborn this cycle.  That person didn't support or vote for Coors.  Doubtless that friend will be very unhappy if Hefley enters the race.  On the other hand, that person was very comfortable when I told him/her that the reason I thought the Dems won the legislature in 2004 was because a school vouchers PAC had spent money to defeat three Republican Incumbents.  Since my friend likes vouchers, he/she had no problem with that conduct! 

This kind of thinking is exactly why the Republican Party is in a state of decline in Colorado.  The hard right folks try actively to defeat moderate Republicans, and the moderates, seeing that the hard right folks won't support their candidates, even when they win primaries, won't support the hard right people.  The Dems pick up the pieces.

What is going on in the Republican Party in Colorado is disgusting.  If you are a "party leader" and you have a history of not supporting a nominee, or worse yet, working against a nominee, I'd prefer that you step away from your leadership position for a few years and meditate on your sins, because you have sinned.

I'm voting for Lamborn, not because I agree with him on every issue, (I don't) but because he has the nomination.  That is what party discipline is all about.
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Judge Taylor # 4

Posted by NOTLEGALROADKILLYET on Tuesday, August 29, 2006 12:33:51 AM
Robert Novak said: 

"For this opinion ever to have been issued by an activist judge in Detroit, in the opinion of several legal scholars and distinguished lawyers whom I contacted, shows the judiciary in a state of chaos."
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A Low Risk Attorney Scam PART 1

Posted by NOTLEGALROADKILLYET on Monday, August 28, 2006 9:22:52 PM
In most professions, practitioners fear lawsuits and will not normally do something that the profession considers unethical to aid a client.

Attorneys have no such fear.  Think of an attorney as a three year old who wants to raid the cookie jar.  If he thinks he might be told "naughty boy," but get to keep the cookie, there isn't a lot of disincentive to keep him from raiding the cookie jar.

Unlike three year olds, attorneys don't expect to get caught because litigants have no ability to make complaints against an attorney, except through the trial judge.  Even if the trial judge forwards a complaint to attorney regulation, attorneys are very unlikely to receive more than a slap on the hand if they take care to appear "remorseful." 

Actually, a "slap on the hand" was overstating the routine level of punishment for some infractions.  What the attorney is likely to get is "public censure," a which is a written scolding, "naughty boy."

Suppose, for the sake of argument that an attorney wanted to delay a trial as long as possible in the hope that the plaintiff would give up, or that witnesses would forget the events, or that the paperwork would disappear.  How could he go about doing that with little or no risk?

It turns out that there is a wonderfully useful bit of case law that does exactly that.  If an attorney is willing to play chicken with a judge over the issue of a default judgment, the attorney can bring a lawsuit to a dead stop.  If the judge actually issues the default judgement, the attorney can "admit fault" while the Defendant claims his attorney wasn't talking to him to get the default judgement reversed.

The only downside to this strategy is that the case law requires that the plaintiff's attorney fees be paid and that the judge must recognize that documents might have been lost over the time the attorney was running the stall.

From an ethics standpoint, the attorney only risks "public censure," if ethics case law is followed, and then only if the trial judge actually will refer the attorney to attorney regulation.  

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I Didn't Vote & Regretted It

Posted by NOTLEGALROADKILLYET on Sunday, August 27, 2006 10:11:13 PM
If you read my bio, as someone has already commented that they have, you will discover that one of my biggest regrets in life was my decision not to vote in 1976.

At the time, I was an Army Officer, and a Battery Commander, which is the most important, and can be the most demanding job in a young officer's career.  I'd like to claim now that I just didn't have time to request and return an absentee ballot, but it isn't true.

Carter was a USNA grad, and didn't seem all that threatening to me.  Like many people, I had Nixon fatigue.  I thought Carter would do OK as a Commander in Chief.  If I had had any doubts, you can bet I would have invested in the two stamps to request and return my ballot.

Fast forward to 1980.  Carter's minions were trying to make Reagan look like a person who couldn't be trusted with the Nuclear button.  Even Amy Carter, who was 9 at the time, seemed to believe that, or so Jimmy claimed at the one debate the two had.

By 1980, I was older and wiser.  Carter had handed Iran over to the mullahs, a decision that I now believe will eventually lead to a nuclear showdown.  Even then, with the hostage crisis and the Desert One fiasco, I knew Iran was a problem.

Desert One happened because Carter had by that time starved the military for three years.  He didn't want to pay for spare parts, pay raises, or even basic supplies.  I remember that in my last year as a Battery Commander we got end of the year funds, and I directed my supply sergeant to buy nothing but toilet paper, 26 boxes of toilet paper.  That may sound wasteful, but I had just gone six months running a barracks with a chronic shortage of toilet paper.  It was that bad.  Soldiers and sailors were voting with their feet.  Two warships were tied up at a dock without crews.

Worse yet, I was due to take my family to Germany for a three year tour.  It may not be widely known outside the military, but a part of preparedness at major commands are exercises and war games.  It was rumored that at one war game, Carter's folks had chosen not to send REFORGER troops to Europe after an invasion.  A President who made that decision was not only condemning the soldiers stationed in Europe to death, he was condemning their families.

Unfortunately, whether it was true or not, it was totally believable given Carter's other decisions.  If I believed it, I thought the Russians would, and if the Russians believed it, they had little to lose if they came across the border.  I had no intention of risking my family, and I told my boss at the time that if Carter got reelected, I was resigning my commission.

Sure, it is true that in 1976, my one vote would not have changed the outcome, but for the rest of my life, I have to shoulder some of the responsibility.

I hope that the Republicans who are as mad at Bush as I was at Nixon will take a lesson from this tale.  If you don't vote, and the worst happens, it is at least partially your fault.  Carter looked as benign to me in 1976 as some Dems may look to you now.  I was wrong.  I hope you are not.

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John Andrews Broadcasting

Posted by NOTLEGALROADKILLYET on Sunday, August 27, 2006 6:28:31 PM
Former State Senate President John Andrew's "Backbone Radio" program will start broadcasting in Colorado Springs this Sunday on 1460 KZNT AM from 5-8 PM Mountain.

You can listen live on-line at 710knus.com and visit the Backbone America website.

Thanks to Kent Lambert for the heads up.
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Though John Andrews very likely doesn't know who I am, and may not know this blog exists, given that it is only starting its second week, he and I share a view that the judiciary is out of control.  His solution is term limits.  Mine is a bit different.  They are not incompatable.
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