Legal Connection Updates http://cbaclelegalconnection.com/?p=39373 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/7SnX-OI9eAI/ Job Satisfaction career transition happiness inspiration job search mental health Nose Pressed Up Against the Glass You’re on the outside looking in. What you want is only a window pane away, but it might as well be on Mars. Novelist Maria E. Andreu captures the feeling: “There is a wonderful scene in the 1939 film version of Wuthering Heights . . . in which Heathcliff and Catherine sneak on to the grounds of the Linton house at night. The Lintons, the rich neighbors, are having a grand party. Heathcliff and Catherine watch through the window, unseen. It’s exactly what’s meant by ‘nose pressed up against the glass,’ watching but not being able to participate." Thu, 19 Jul 2018 14:18:30 Z https://cbaclelegalconnection.com/2018/07/nose-pressed-up-against-the-glass/#respond Kevin Rhodes <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2018/07/nose-pressed-up-against-the-glass/noseagainsttheglass/" rel="attachment wp-att-39374"><img class="size-full wp-image-39374 aligncenter" src="http://cbaclelegalconnection.com/wp-content/uploads/2018/07/nose20against20the20glass.jpg" alt="" width="401" height="202" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2018/07/nose20against20the20glass.jpg 401w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/nose20against20the20glass-150x76.jpg 150w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/nose20against20the20glass-300x151.jpg 300w" sizes="(max-width: 401px) 100vw, 401px" /></a></p> <p>You’re on the outside looking in. What you want is only a window pane away, but it might as well be on Mars. Novelist Maria E. Andreu <a href="https://mariaeandreu.com/2014/01/23/nose-pressed-up-against-the-glass-no-more/">captures the feeling</a>:</p> <p><a href="http://cbaclelegalconnection.com/2018/07/nose-pressed-up-against-the-glass/wutheringheights/" rel="attachment wp-att-39375"><img class="alignleft size-full wp-image-39375" src="http://cbaclelegalconnection.com/wp-content/uploads/2018/07/wuthering20heights.jpg" alt="" width="175" height="287" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2018/07/wuthering20heights.jpg 175w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/wuthering20heights-91x150.jpg 91w" sizes="(max-width: 175px) 100vw, 175px" /></a>“There is a wonderful scene in the 1939 film version of Wuthering Heights . . . in which Heathcliff and Catherine sneak on to the grounds of the Linton house at night. The Lintons, the rich neighbors, are having a grand party. Heathcliff and Catherine watch through the window, unseen. It’s exactly what’s meant by ‘nose pressed up against the glass,’ watching but not being able to participate.</p> <p>“You can see a lot in their faces as they watch the others dance. Catherine, the daughter of a landed ‘gentleman,’ gets a look that lets you know that she’s intrigued, beginning to want to let go of her wild childhood and take her place in the Lintons’ world. Healthcliff, the servant who adores Catherine, knows that even if he could stop being poor, he would never belong there. He will always be watching from outside the glass.”</p> <p>Nose pressed up against the glass — it’s an enduring image in literature and in life. Ms. Andreu continues:</p> <blockquote><p>I’ve thought about this scene a lot. I’ve used the image in my writing. It illustrates how I’ve felt sometimes, able to see ‘the good life’ but not able to live it. Most of my life, the Heathcliff in me has weighed heavy inside my heart.</p></blockquote> <p>But then one day the magic happened, and suddenly she found herself transported to the other side of the window pane:</p> <blockquote><p>Yesterday, I got a rave review for my novel that comes out in a month and a half. In my email, I got an invitation to a launch party for another author’s book. I packed to go to a book signing and remembered I needed an extra outfit for an industry cocktail party and the ‘members only’ dinner afterwards with people from my publishing house.</p> <p>If that’s not being inside the party, I don’t know what is.</p> <p>Someone has opened the door of the party for some fresh air, seen me lurking, and extended a hand of friendship to let me in. It is an unbelievable feeling. I live a life of impossible splendor, of magical beauty, of infinite luck. And I am so deeply grateful.</p></blockquote> <p>We’d feel the same way, if we ever got so lucky. (Assuming we’ve been working hard enough to get lucky — here’s <a href="https://quoteinvestigator.com/2012/07/21/luck-hard-work/">The Quote Investigator</a> on where that saying came from.)</p> <p><a href="http://cbaclelegalconnection.com/2018/07/nose-pressed-up-against-the-glass/hardworkluck/" rel="attachment wp-att-39376"><img class="size-full wp-image-39376 aligncenter" src="http://cbaclelegalconnection.com/wp-content/uploads/2018/07/hard20work20luck.jpg" alt="" width="414" height="170" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2018/07/hard20work20luck.jpg 414w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/hard20work20luck-150x62.jpg 150w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/hard20work20luck-300x123.jpg 300w" sizes="(max-width: 414px) 100vw, 414px" /></a></p> <p>In economic terms, the distance between Heathcliff and the Lintons is a matter of <em>social capital</em>. Ryan Avent, author of <em><a href="https://www.amazon.com/Wealth-Humans-Status-Twenty-first-Century/dp/1250075807/ref=tmm_hrd_swatch_0?_encoding=UTF8&amp;qid=1531672835&amp;sr=8-1">The Wealth of Humans</a></em>, distinguishes between <em>human</em> capital and <em>social </em>capital. Human capital, he says, is a particularly focused and useful form of knowledge that an individual gains through education, hard work, experience, on-the-job training, etc. It’s the hard work part of the formula. Social capital, on the other hand, is the opportunity part, and it’s not just personal, it’s cultural. Avent says it’s “like human capital . . . but is only valuable in particular contexts, within which a critical mass of others share the same social capital.”</p> <p><a href="http://cbaclelegalconnection.com/2018/07/nose-pressed-up-against-the-glass/redvelvetrope2/" rel="attachment wp-att-39377"><img class="size-full wp-image-39377 aligncenter" src="http://cbaclelegalconnection.com/wp-content/uploads/2018/07/red20velvet20rope202.jpg" alt="" width="277" height="182" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2018/07/red20velvet20rope202.jpg 277w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/red20velvet20rope202-150x99.jpg 150w" sizes="(max-width: 277px) 100vw, 277px" /></a></p> <p>For those not already in the social capital club, converting human capital into social capital requires upward mobility. Ms. Andreu’s upward mobility moment was getting her “members only” invitation – official permission to duck under the red velvet rope and join an exclusive gathering where she could schmooze the “others [who] share the same social capital.” Heathcliff, on the other hand, never got his upward mobility moment. As a result, there wasn’t just a glass window pane between him and the Lintons, there was a glass ceiling.</p> <p><a href="http://cbaclelegalconnection.com/2018/07/nose-pressed-up-against-the-glass/625-01092012/" rel="attachment wp-att-39378"><img class="wp-image-39378 size-full aligncenter" src="http://cbaclelegalconnection.com/wp-content/uploads/2018/07/glass20ceiling20glass20floor.jpg" alt="" width="225" height="150" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2018/07/glass20ceiling20glass20floor.jpg 225w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/glass20ceiling20glass20floor-150x100.jpg 150w" sizes="(max-width: 225px) 100vw, 225px" /></a></p> <p>Nose pressed against the glass… glass ceiling… we’ve heard those expressions before. Nowadays, another glass metaphor has entered the economic lexicon: the “glass floor, which protects the upper middle class against the risk of <em>downward</em> mobility.” (My emphasis. The quote is from <em><a href="https://www.amazon.com/dp/B079RMDPC3/ref=dp-kindle-redirect?_encoding=UTF8&amp;btkr=1">Dream Hoarders:  How the American Upper Middle Class is Leaving Everyone Else in the Dust, Why That is a Problem, and What to Do About It</a> </em>by Richard V. Reeves.)</p> <p>Hoping to move up? Afraid of moving down? These days, it’s hard to do either. And if you’re hoping to move up, there’s one additional, elusive element required for membership in the red velvet club:  the notion of <em>identity</em> — the need to <em>be</em> the kind of person who <em>belongs</em> there. In this short video (click the image below), Michael Port, author of the bestseller <em><a href="http://www.bookyourselfsolid.com/">Book Yourself Solid</a></em>, asks, “What makes [red velvet rope people] who they are?” He answers that it’s “their quality, their characteristics, their personality — things that are innate, are part of who they are as people, not necessarily their circumstances.”</p> <p><a href="https://www.youtube.com/watch?v=T-WxcudVeRU" target="_blank" rel="attachment noopener wp-att-39379"><img class="size-full wp-image-39379 aligncenter" src="http://cbaclelegalconnection.com/wp-content/uploads/2018/07/red20velvet20rope.png" alt="" width="360" height="225" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2018/07/red20velvet20rope.png 360w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/red20velvet20rope-150x94.png 150w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/red20velvet20rope-300x188.png 300w" sizes="(max-width: 360px) 100vw, 360px" /></a></p> <p><em>We’ll be looking lots more at upward mobility and social capital in the weeks to come.</em></p> <p>&nbsp;</p> <div style="border: 1px solid #999999; background-color: #dadada;"> <p><em><a href="http://cbaclelegalconnection.com/2017/07/can-money-buy-happiness/photo-kevin-head-shot-thumbnail/" rel="attachment wp-att-37377"><img class="alignleft size-full wp-image-37377" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail.jpg" alt="" width="150" height="187" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail.jpg 150w, https://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail-120x150.jpg 120w" sizes="(max-width: 150px) 100vw, 150px" /></a></em></p> <p><a href="https://www.linkedin.com/in/kevin-rhodes-b171117/">Kevin Rhodes </a>writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning. Check out his latest LinkedIn Pulse article: “<a href="https://www.linkedin.com/pulse/rolling-rock-lessons-from-sisyphus-work-working-out-life-kevin-rhodes/?">Rolling the Rock: Lessons From Sisyphus on Work, Working Out, and Life</a>.”</p> </div> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/7SnX-OI9eAI" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/nose-pressed-up-against-the-glass/feed/ 0 https://cbaclelegalconnection.com/2018/07/nose-pressed-up-against-the-glass/ 2018-07-19 14:18 +00:00 2018-07-19 08:18 -06:00 http://cbaclelegalconnection.com/?p=39371 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/MQsH2_NKznM/ Case Law Colorado Court of Appeals Colorado Governmental Immunity Act government law liability litigation municipal law personal injury law Colorado Court of Appeals: Governmental Immunity May Be Waived for Operation or Maintenance of Public Facility Performed by Independent Contractor The Colorado Court of Appeals issued its opinion in <em>Lopez v. City of Grand Junction</em> on Thursday, July 12, 2018. Thu, 19 Jul 2018 13:42:19 Z https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-governmental-immunity-may-be-waived-for-operation-or-maintenance-of-public-facility-performed-by-independent-contractor/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/16CA1652-PD.pdf" target="_blank" rel="noopener"><em>Lopez v. City of Grand Junction</em></a> on Thursday, July 12, 2018.</p> <blockquote><p><em>Negligence—Colorado Governmental Immunity Act—Waiver—Independent Contractor—Maintenance Work.</em></p> <p>The underground maintenance of a public traffic light in Grand Junction breached a natural gas line. Gas from the ruptured line leaked into the surrounding ground and a sewer main and migrated to a house, resulting in an explosion. Lopez, Pierson, and Gimmeson (plaintiffs) brought negligence claims against the City of Grand Junction (City) for their resultant personal injuries and property damage. Plaintiffs’ complaint alleges, among other things, that the City breached its duty of care to safely maintain its utility, electric, and sewer lines. As pertinent here, the complaint alleged that the City contracted with Apeiron Utility Construction (Apeiron) to upgrade utility lines that powered a traffic light; during this maintenance project Apeiron ruptured a gas line; and the leaking gas resulted in the house explosion. The complaint further alleged that Apeiron’s conduct should be imputed to the City. The City moved to dismiss these negligence claims for lack of jurisdiction under C.R.C.P. 12(b)(1), asserting governmental immunity under the Colorado Governmental Immunity Act (CGIA). The court granted the motion.</p> <p>On appeal, plaintiffs contended that the district court erroneously concluded that Apeiron’s conduct in maintaining the traffic light was not attributable to the City for purposes of waiving the City’s immunity under C.R.S. § 24-10-106(1)(f). For purposes of the immunity waiver in C.R.S. § 24-10-106(1)(f), a public entity maintains a public facility even if it hires an independent contractor to perform the maintenance. Here, plaintiffs met their burden to establish a waiver of immunity as to their negligence claims against the City.</p> <p>Plaintiffs next asserted that the district court erred when it dismissed their negligence claim against the City as to its operation and maintenance of its sewer main. Plaintiffs asserted that the City’s failure to keep the main free of invasive roots was a failure to maintain that waived liability under the CGIA. Based on the record, plaintiffs failed to meet their burden to prove a waiver.</p> <p>The dismissal of plaintiffs’ negligence claim against the City as to its operation and maintenance of its sewer main was affirmed. The dismissal of the negligence claims against the City for Apeiron’s maintenance work on the traffic light was reversed and the case was remanded.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/MQsH2_NKznM" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-governmental-immunity-may-be-waived-for-operation-or-maintenance-of-public-facility-performed-by-independent-contractor/feed/ 0 https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-governmental-immunity-may-be-waived-for-operation-or-maintenance-of-public-facility-performed-by-independent-contractor/ 2018-07-19 13:42 +00:00 2018-07-19 07:42 -06:00 http://cbaclelegalconnection.com/?p=39369 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/J1PKM5PotIA/ Case Law Colorado Court of Appeals competency criminal law jury instruction securities securities fraud unanimity Colorado Court of Appeals: Trial Court Must Determine Whether Retrospective Competency Evaluation Feasible The Colorado Court of Appeals issued its opinion in <em>People v. Lindsey</em> on Thursday, July 12, 2018. Thu, 19 Jul 2018 13:34:42 Z https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-trial-court-must-determine-whether-retrospective-competency-evaluation-feasible/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/15CA1368-PD.pdf" target="_blank" rel="noopener"><em>People v. Lindsey</em></a> on Thursday, July 12, 2018.</p> <blockquote><p><em>Competency—Jury Instructions—Unanimity Instruction.</em></p> <p>Lindsey persuaded six individuals to invest $3 million in new technology that would allegedly use algae-based bioluminescent energy to light signs and panels. Lindsey told his investors that he had contracts to sell his new technology. Neither the technology nor the contracts ever existed, and Lindsey allegedly spent the money on repaying other investors and on personal expenses. A jury convicted Lindsey of eight counts of securities fraud and four counts of theft.</p> <p>On appeal, Lindsey contended that the trial court erred in refusing to order a competency evaluation where the issue was raised by his counsel’s motion before trial. Here, the trial court failed to comply with the statutory procedure. The motion was facially valid, and the trial court abused its discretion in concluding that a facially valid motion on competency did not fall under the competency statute.</p> <p>Lindsey next argued that the trial court erred by (1) instructing the jury that “any note” constitutes a security, and (2) giving an improper unanimity instruction. As to the first argument, Lindsey’s trial was conducted before <em>People v. Mendenhall</em>, 2015 COA 107M. In the event of retrial, the trial court and parties should apply <em>Mendenhall</em>’s four-factor test in crafting new jury instructions. As to the second contention, regarding Count 6, which included three separate transactions, the unanimity instruction should be modified to specify that the jury must agree unanimously that defendant committed the same act or that defendant committed all of the acts included within the period charged.</p> <p>The judgment was vacated and the case was remanded with directions.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/J1PKM5PotIA" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-trial-court-must-determine-whether-retrospective-competency-evaluation-feasible/feed/ 0 https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-trial-court-must-determine-whether-retrospective-competency-evaluation-feasible/ 2018-07-19 13:34 +00:00 2018-07-19 07:34 -06:00 http://cbaclelegalconnection.com/?p=39367 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/gnLc7wKyIcw/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 7/18/2018 On Wednesday, July 18, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions. Thu, 19 Jul 2018 13:14:58 Z https://cbaclelegalconnection.com/2018/07/tenth-circuit-unpublished-opinions-7-18-2018/#respond Susan Hoyt <div class="pf-content"><p>On Wednesday, July 18, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.</p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-7029.pdf" target="_blank" rel="noopener"><em>United States v. Brown</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-3086.pdf" target="_blank" rel="noopener"><em>United States v. Handy</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-1116.pdf" target="_blank" rel="noopener"><em>Valles v. Hansen</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/16/16-1491.pdf" target="_blank" rel="noopener"><em>United States v. Jaramillo</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/gnLc7wKyIcw" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/tenth-circuit-unpublished-opinions-7-18-2018/feed/ 0 https://cbaclelegalconnection.com/2018/07/tenth-circuit-unpublished-opinions-7-18-2018/ 2018-07-19 13:14 +00:00 2018-07-19 07:14 -06:00 http://cbaclelegalconnection.com/?p=39365 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/Ynm2bTiSsKs/ Partners Connection Partners elder law insurance law long-term care A Needed Response to 9News’ Misguided Story on Long-Term Care Insurance Happy Summer everyone! This blog post features a rebuttal from the LTC Forum of Colorado, Inc., in response to a news story on 9News KUSA claiming that long-term care insurance is no longer a valid option for the middle class. The fact is that traditional LTC insurance is best-suited for the middle class! The 9News [&#8230;] Wed, 18 Jul 2018 00:04:26 Z https://cbaclelegalconnection.com/2018/07/a-needed-response-to-9news-misguided-story-on-long-term-care-insurance/#respond Aaron Eisenach <div class="pf-content"><p><em><a href="http://cbaclelegalconnection.com/2017/11/introduction-lessons-alzheimers-disease/aaroneisenach/" rel="attachment wp-att-38060"><img class="alignleft size-medium wp-image-38060" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/11/AaronEisenach-240x300.jpg" alt="" width="240" height="300" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2017/11/AaronEisenach-240x300.jpg 240w, https://cbaclelegalconnection.com/wp-content/uploads/2017/11/AaronEisenach-120x150.jpg 120w, https://cbaclelegalconnection.com/wp-content/uploads/2017/11/AaronEisenach-768x960.jpg 768w, https://cbaclelegalconnection.com/wp-content/uploads/2017/11/AaronEisenach-819x1024.jpg 819w" sizes="(max-width: 240px) 100vw, 240px" /></a>Happy Summer everyone! This blog post features a rebuttal from the LTC Forum of Colorado, Inc., in response to a <a href="https://www.9news.com/video/news/local/the-death-of-longterm-care-for-middle-income-earners/73-8157821" target="_blank" rel="noopener">news story on 9News KUSA</a> claiming that long-term care insurance is no longer a valid option for the middle class. The fact is that traditional LTC insurance is best-suited for the middle class! </em></p> <p><em>The 9News story also ignores some of the newest solutions on the market, including life insurance that allows the death benefit to be used for care and hybrid life or annuity policies. Watch for more information on these solutions in my next blog or visit </em><a href="http://www.AaronEisenach.com"><em>www.AaronEisenach.com</em></a><em> for videos explaining these solutions. I can be reached at (303) 659-0755.</em></p> <p>On June 12, 2018, <a href="https://www.9news.com/video/news/local/the-death-of-longterm-care-for-middle-income-earners/73-8157821" target="_blank" rel="noopener">9News KUSA aired a story</a>, “The Death of Long Term Care for the Middle Income Earners,” full of dangerous advice that may lead Coloradoans to costly conclusions based on myths and misunderstandings. The LTC Forum of Colorado, Inc., a non-profit advocacy group that supports and encourages long-term care planning in Colorado, is responding to claims in the story and wishes to set the record straight.</p> <p><strong>Claim:</strong>  Middle income earners (those who earn $87,500 per year) have been priced out of the long-term care market. Average premiums are $6,000 per year, which may be the low end.</p> <p><strong>Fact:  </strong>The annual premium for coverage from the best-selling company in the United States for a 60-year old single female is $3,273.17 per year.  A single male would pay $2,005.51 per year. Assumptions include a $5,000 monthly benefit, a 3-year benefit period, a $180,000 maximum benefit, a 90-day elimination period (similar to a deductible), preferred health rates, and a 3% compound annual inflation protection rider. Note that the inflation rider causes the monthly benefit and the $180,000 maximum benefit to grow each year by 3% of the previous years’ amount. The result is that by age 84, the monthly benefit will provide approximately $10,000 per month for care at home, in an assisted living facility or a nursing home, and the maximum benefit is worth approximately $360,000.</p> <p><strong>Claim: </strong>Premiums could go as high as $9,000 per year because insurance companies are telling current owners they could face a 50% hike at any point just because no one knows where healthcare is going.</p> <p><strong>Fact: </strong>Premiums cannot simply go up at any point. The Commissioner of the Colorado Division of Insurance has the responsibility of approving, denying, or modifying requested increases. Premiums cannot increase due to any one individual’s age, change in health, or due to use of the policy. Premiums can change if the insurance company makes the same change for all person of the same class.</p> <p>True, long-term care insurance companies have increased premiums on policies sold in the past, mainly due to increasing longevity, low policy lapse rates, and historically low interest rates. To put this into perspective, let’s assume someone purchased a policy 15 years ago, in 2003, for $150 per month and that the premium has doubled to $300 per month. This is still affordable for folks making $87,500 per year. And this is a far cry from the claim that policies are increasing to $9,000 per year, which is equivalent to $750 per month.</p> <p>In addition, companies offering LTC insurance policies today are including assumptions for low interest rates, very low policy lapse rates, and longevity. And because Colorado is one of more than 40 states that have adopted the National Association of Insurance Commissioners&#8217; LTC Insurance Rate Stability Regulation, Coloradoans have much more regulatory protection from the type of rate increases we have seen in the past.</p> <p><strong>CLAIM: </strong>No one knows where healthcare is going.</p> <p><strong>FACT: </strong>Surely everyone believes that healthcare costs will continue to escalate. However, long-term care costs do not increase nearly at the same rate as health insurance and medical expenses. LTC costs are largely driven by personnel costs and the cost of building brick and mortar facilities. The good news is that more people will stay at home for extended care, often at lower cost than being in a facility, by taking advantage of a growing number of home care agencies and advancing technologies such as robots and sensors.</p> <p><strong>Claim: </strong>Benefits no longer cover all daily expenses.</p> <p><strong>Fact: </strong>People purchasing LTC insurance today can purchase policies with benefits up to $500 per day or $15,000 per month.  Because policies cost more today than in the past, it is now commonplace for consumers to design coverage to cover some, but not all, of the cost of care. For example, if an insured is receiving memory care in an assisted living facility at $7,000 per month, a policy with a $5,000 monthly benefit would cover more than 70% of the cost of care, leaving the policyowner $2,000 out-of-pocket, which is obviously better than $7,000 out-of-pocket. What’s more, a $5,000 monthly benefit would also cover more than five hours of home care every day for a month.</p> <p><strong>Claim: </strong>Many policyholders, because of financial decline or cognitive issues in their later years, let the policies lapse and then they lose everything – the future benefits they were paying for and then all the money they have put in over the years.</p> <p><strong>Fact: </strong>Regarding financial decline: First, only about 1% of LTC insurance policyholders let their policies lapse. This fact is one of the primary reasons premiums have increased.  Fortunately, if an insurance company files and receives approval from Colorado Division of Insurance for a premium increase, policyowners are able to trim benefits in order to lessen a rate increase or avoid the increase altogether. This opportunity is explained to the policyowner so that he or she can make an informed decision.</p> <p>For nearly two decades now, policies include a built-in Contingent Nonforfeiture Benefit, which allows clients to drop coverage if rate increases exceed pre-prescribed amounts. If coverage is let go, premiums paid over time will be used to pay for future long-term care expenses. In other words, the policy is converted into a paid-up policy.</p> <p>Regarding the claim that policyowners lapse their coverage due to cognitive issues, there are strong consumer protections against such a situation. The NAIC Long-Term Care Insurance Model Act requires the following:</p> <blockquote><p>[A] long-term care insurance policy or certificate shall include a provision that provides for reinstatement of coverage in the event of lapse if the insurer is provided proof that the policyholder or certificate holder was cognitively impaired or had a loss of functional capacity before the grace period contained in the policy expired. This option shall be available to the insured if requested within five (5) months after termination and shall allow for the collection of past due premiums, where appropriate. The standard of proof of cognitive impairment or loss of functional capacity shall not be more stringent than the benefit eligibility criteria on cognitive impairment or the loss of functional capacity contained in the policy and certificate.<strong> </strong></p></blockquote> <p><strong>Claim: </strong> A short-term care policy should suffice because most need care in a facility less than seven to nine months.</p> <p><strong>Fact: </strong> Claims data for 2014 from Genworth Financial, which has more LTC insurance policyholders than anyone in the industry, dispels the idea that policies covering up to nine months leaves a gaping hole in one’s plan for extended care. First, 50% of claims last more than one year, and of those lasting more than one year, the average length of claim lasts 3.9 years. Note also that 71% of claims started with home care; only 16% started in nursing homes. No doubt, long-term care insurance helps people stay at home where they want to be. Yes, the LTC Forum of Colorado, Inc., recommends short-term care insurance coverage to those not healthy enough to purchase LTC insurance or who cannot afford such a policy. But LTC insurance should be the choice for those who can qualify and afford $2,000 to $3,000 per year. In addition, only long-term care insurance can qualify policyowners for the Colorado Partnership Program which allows insureds to protect assets from Medicaid spend-down. For every dollar the Partnership policy pays for care, one dollar in assets is disregarded, allowing the middle class policyholder to leave assets to a spouse, partner, or children.</p> <p>The story omits other attractive insurance-based planning solutions that are growing in popularity. For example, many life insurance companies now allow the death benefit provided by a life insurance policy to be used or “accelerated” for LTC services. Any remaining death benefit not used for care is paid to the beneficiaries. Premiums may be guaranteed, most offer cash surrender values if the insured cancels coverage, and some allow the monthly benefit received to be used for care from anyone such as family and friends.</p> <p><strong>Claim: </strong>The best solution is a reverse mortgage. No premiums, guaranteed income, and you don’t lose your home. If you are able to age in place at home, you have your house as your insurance policy and that’s the best route to go.</p> <p><strong>Fact: </strong>A home is not an insurance policy. While the LTC Forum endorses and recommends reverse mortgages, such a tool is not for everyone. First, the proceeds from a reverse mortgage may not provide enough income to cover the cost of extended care. Second, the common goal of keeping the house in the family may be compromised. Third, fees and other closing costs can be high.  Lastly, if the home is no longer the primary residence for 12 months, such as needing care in a nursing home or assisted living facility, the loan comes due. Even with these concerns, a very good idea would be to use some of the proceeds to purchase long-term care insurance.</p> <p>The Forum applauds programs like “Perfect Homecoming” through Lutheran Medical Center and the Senior Resource Center. Certainly, these caring people and institutions play a significant role in discharge, care coordination, meals, and other services. However, the Forum is concerned that Colorado consumers might be led to believe that such programs negate the need for long-term care insurance, or even short-term care insurance. The story simply left out the fact that the patient returning home still needs to pay for home health care services, which is the role of insurance. And if the patient cannot transition back to home and needs care in a facility, the patient and the family will either be thankful for having quality long-term care insurance in place or will desperately wish they had the coverage!</p> <p>Simply put, needing long-term care is the greatest uninsured risk left in life – more than 50% of people who reach 65 are expected to need care someday. Without any coverage, the caregiver, usually a spouse or child, will often go through severe emotional and physical consequences. For most, the retirement plan and other savings will be depleted to pay for care instead of providing lifestyle and keeping continuing commitments to loved ones. The members of the LTC Forum of Colorado strongly believe that <em>some coverage </em>is better than <em>no coverage!</em></p> <p>We would very much welcome the opportunity to visit with 9News about the issues above and additional insurance-based solutions.</p> <p>Thank you,</p> <p>The Members of the LTC Forum of Colorado, Inc.</p> <p>Aaron R Eisenach, CLTC, President<br /> Tammey Sullivan, CLTC, Vice President<br /> Christine Crowley, CLTC, Treasurer<br /> Janet Van Dorn, CLU, CLTC, Secretary<br /> James Eby<br /> Joyce Fowler, CLTC<br /> Paul Hallmark, CLTC<br /> Ralph Leisle, CLU, ChFC, CASL<br /> Tom Rasmussen, CLTC<br /> Don Rhoades<br /> Ray Smith, CLU, CLTC, MBA</p> <p><em>For contact information, please visit </em><a href="http://www.LTCForumColorado.org/members"><em>www.LTCForumColorado.org/members</em></a></p> <p>&nbsp;</p> <div style="border: 1px solid #999999; background-color: #dadada;"> <p><em>Aaron R. Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. His passion for this topic stems from losing both his father and grandfather to Alzheimer’s Disease. As an insurance wholesaler, Mr. Eisenach represents ICB, Inc., the nation’s first general agency specializing in LTC insurance. As an educator, he provides workshops to consumers and teaches state-mandated continuing education courses to Colorado insurance agents selling LTC products. As a broker, Mr. Eisenach is the proprietor of AaronEisenach.com and partners with financial advisors and agents who trust him to work with their clients. He is the immediate past president of the Producers Advisory Council at the Colorado Division of Insurance, serves as president of the nonprofit LTC Forum of Colorado, Inc, and has appeared on 9News and KMGH Channel 7. He recently served as an expert witness in a court case and was a contributing author to the American College curriculum on long-term care insurance.<br /> </em></p> </div> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/Ynm2bTiSsKs" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/a-needed-response-to-9news-misguided-story-on-long-term-care-insurance/feed/ 0 https://cbaclelegalconnection.com/2018/07/a-needed-response-to-9news-misguided-story-on-long-term-care-insurance/ 2018-07-18 00:04 +00:00 2018-07-17 18:04 -06:00 http://cbaclelegalconnection.com/?p=39363 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/KSL9ArZGkLo/ Case Law closed courtroom Colorado Court of Appeals criminal law criminal procedure jury instructions Colorado Court of Appeals: Closure of Courtroom to Reread Jury Instructions Violated Defendant’s Right to Public Trial The Colorado Court of Appeals issued its opinion in <em>People v. Lujan</em> on Thursday, June 12, 2018. Tue, 17 Jul 2018 23:46:36 Z https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-closure-of-courtroom-to-reread-jury-instructions-violated-defendants-right-to-public-trial/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/15CA1176-PD.pdf" target="_blank" rel="noopener">People v. Lujan</a> </em>on Thursday, June 12, 2018.</p> <blockquote><p><em>Right to Public Trial—Constitutional Law—Sixth Amendment—Rebuttal—Residual Hearsay Exception—Other Acts Evidence.</em></p> <p>The victim, defendant’s live-in girlfriend, was beaten, strangled, and left on the ground outside a friend’s apartment in 1999. In 2013, the People charged defendant with first degree murder. On the first day of trial, defendant conceded that he was responsible for the victim’s death, but he argued that he was guilty only of reckless manslaughter. After jury deliberations had started, the trial judge closed the courtroom to read limiting instructions to the jury, over defendant’s objection. The jury found defendant guilty of second degree (knowing) murder.</p> <p>On appeal, defendant contended that his conviction must be reversed because closing the courtroom to read limiting instructions upon the jury’s request violated his right to a public trial and his right to be present. A criminal defendant’s right to a public trial is guaranteed by both the U.S. and Colorado Constitutions. Here, the trial court <em>sua sponte</em> excluded all but the jury, the bailiff, the reporter, and itself from the courtroom. In this case, the closure was total, intentional, and unjustified, and defendant’s Sixth Amendment right was violated.</p> <p>Defendant also contended that the court committed three evidentiary errors. First, a law enforcement officer testified for the People that in all of their interactions, defendant had never seemed upset or remorseful about the victim’s death. Defendant contended that because the prosecution opened the door to his demeanor, and the testimony did not involve hearsay, he was entitled to elicit rebuttal testimony as part of his right to present a defense. Exclusion of the rebuttal testimony was an abuse of discretion because the court misapplied the law in concluding that the evidence was hearsay. On the other hand, the court did not abuse its discretion in admitting statements made by the victim to two witnesses before her death under the residual hearsay exception because the court found that these statements were sufficiently trustworthy. The court also did not abuse its discretion in allowing defendant’s ex-wife and his former girlfriend to testify about defendant’s specific acts while in their individual relationships, finding that defendant had committed such acts and the evidence was related to a material fact with logical relevance independent of the prohibited inference of defendant’s bad character. Further, the court provided an appropriate limiting instruction.</p> <p>The judgment was reversed and the case was remanded for a new trial.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/KSL9ArZGkLo" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-closure-of-courtroom-to-reread-jury-instructions-violated-defendants-right-to-public-trial/feed/ 0 https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-closure-of-courtroom-to-reread-jury-instructions-violated-defendants-right-to-public-trial/ 2018-07-17 23:46 +00:00 2018-07-17 17:46 -06:00 http://cbaclelegalconnection.com/?p=39361 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/uwDNTHdxzDE/ Case Law appellate law Colorado Court of Appeals competency constitutional law criminal law postconviction proceeding Colorado Court of Appeals: Indefinite Stay of Appeal Denied where Defendant Found Legally Incompetent After Notice of Appeal Filed The Colorado Court of Appeals issued its opinion in <em>People v. Liggett</em> on Thursday, June 12, 2018. Tue, 17 Jul 2018 23:40:01 Z https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-indefinite-stay-of-appeal-denied-where-defendant-found-legally-incompetent-after-notice-of-appeal-filed/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/14CA2506%20&amp;%2014CA2511-PD.pdf" target="_blank" rel="noopener"><em>People v. Liggett</em></a> on Thursday, June 12, 2018.</p> <blockquote><p><em>Competency to Proceed—Stay of Appellate Proceedings—Jurisdiction—Restoration Proceedings—Right to Counsel—Waiver. </em></p> <p>This is a direct appeal of two cases, first degree murder after deliberation and revocation of probation (based on the murder conviction). Based on Liggett’s incompetence, his counsel requested an indefinite stay of the appellate proceedings, a stay of the ruling on Liggett’s request to terminate counsel’s representation and to dismiss the appeal, and a remand of the cases to the district court for competency restoration proceedings.</p> <p>On appeal, Liggett’s counsel contended that the direct appeal should be stayed indefinitely because proceeding while Liggett is incompetent will violate his Sixth Amendment right to counsel and his Fifth and Fourteenth Amendment rights to due process of law. An incompetent defendant’s direct appeal should proceed, despite incompetence, if the defendant is provided a postconviction remedy to raise issues not raised in the direct appeal due to his incompetence. The court of appeals held that Liggett must be permitted to raise in a postconviction motion any matter not raised in the direct appeal due to his incompetence.</p> <p>The People contended that the direct appeal divested the district court of jurisdiction and that the appeal and restoration proceedings cannot occur simultaneously. They also argued that the district court has no authority to order the Department of Corrections (DOC), in whose custody Liggett resides, to restore him to competency. The People agreed that Liggett is incompetent and that an incompetent defendant cannot waive the right to counsel on direct appeal. Thus, Liggett’s incompetence precludes the court from ruling on his pending requests to terminate counsel and dismiss the appeal, and a limited remand to restore Liggett’s competence is necessary.</p> <p>A stay of the ruling on Liggett’s requests to terminate counsel and dismiss the appeal was granted. The request for indefinite stay of the appellate proceedings was denied. The request for limited remand to restore Liggett to competence was granted and the case was remanded to the district court for that limited purpose.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/uwDNTHdxzDE" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-indefinite-stay-of-appeal-denied-where-defendant-found-legally-incompetent-after-notice-of-appeal-filed/feed/ 0 https://cbaclelegalconnection.com/2018/07/colorado-court-of-appeals-indefinite-stay-of-appeal-denied-where-defendant-found-legally-incompetent-after-notice-of-appeal-filed/ 2018-07-17 23:40 +00:00 2018-07-17 17:40 -06:00 http://cbaclelegalconnection.com/?p=39359 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/xZ1aovv_rO4/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 7/17/2018 On Tuesday, July 17, 2018, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions. Tue, 17 Jul 2018 23:23:07 Z https://cbaclelegalconnection.com/2018/07/tenth-circuit-unpublished-opinions-7-17-2018/#respond Susan Hoyt <div class="pf-content"><p>On Tuesday, July 17, 2018, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.</p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-5107.pdf" target="_blank" rel="noopener"><em>Parker v. Dowling</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-6021.pdf" target="_blank" rel="noopener"><em>United States v. Hernandez</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-1233.pdf" target="_blank" rel="noopener"><em>Adams v. Kline</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-4076.pdf" target="_blank" rel="noopener"><em>Nicholson v. Mnuchin</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/xZ1aovv_rO4" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/tenth-circuit-unpublished-opinions-7-17-2018/feed/ 0 https://cbaclelegalconnection.com/2018/07/tenth-circuit-unpublished-opinions-7-17-2018/ 2018-07-17 23:23 +00:00 2018-07-17 17:23 -06:00 http://cbaclelegalconnection.com/?p=39357 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/cdwiVjO6qDU/ Legal Writing appellate law Connection Partners law practice management legal writing litigation motions The Grammar Dilemma: Which Rules Are Worth Knowing “None of you are guilty” or “None of you is guilty”? Can I use “since” as a synonym for “because” or can I only use it to reference time? One space or two between sentences? Is it email or e-mail? Some people have strong feelings about these kinds of questions. But many exasperate “who cares?!” Tue, 17 Jul 2018 15:34:22 Z https://cbaclelegalconnection.com/2018/07/the-grammar-dilemma-which-rules-are-worth-knowing/#respond Michael Blasie <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2017/09/lawless-landscape-legal-writing/michael-blasie-legal-writing/" rel="attachment wp-att-37648"><img class="alignleft size-full wp-image-37648" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing.jpg" alt="" width="170" height="171" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing.jpg 170w, https://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing-150x150.jpg 150w, https://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing-70x70.jpg 70w, https://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing-100x100.jpg 100w" sizes="(max-width: 170px) 100vw, 170px" /></a>“None of you <em>are</em> guilty” or “None of you <em>is</em> guilty”? Can I use “since” as a synonym for “because” or can I only use it to reference time? One space or two between sentences? Is it email or e-mail? Some people have strong feelings about these kinds of questions. But many exasperate “who cares?!”</p> <p>We are lawyers. We are busy. We have limited time. When is it worth perusing a six-inch thick book to find a grammar rule? Almost never.</p> <p>Nonetheless, to write clearly you need to understand the ambiguity of English grammar.</p> <p><strong>The Next Person That Recommends Strunk &amp; White . . . </strong></p> <p>Since freshman orientation people have always told me to worship Strunk and White’s <em>Elements of Style</em>. I’m pretty sure 98% of those people have never read the book. I’m equally sure 99% of the U.S. population has not. These statistics are not backed by data, just my gut. But in fairness, most of our grammar sense comes from our gut—if this phrase “sounds” right it must be right. Turns out, the Gut Theory of Grammar works pretty well. It works pretty well because there are no grammar rules. Let’s circle back to the <em>Elements of Style</em>.</p> <p>Most people recommend the <em>Elements of Style</em> because other people recommended it to them. This daisy chain advice is so long no one remembers where it started. But surely the book gained credence for a reason.</p> <p>Who were Strunk and White? They were co-chairs of the National Commission of American English created by President Nixon to develop consistency in how American students learned the language. Just kidding. There is no commission. Unlike France, the United States has no official body that determines language rules.<a href="#_ftn1" name="_ftnref1">[1]</a> Strunk and White are two people who sat down to write a book about grammar. Strunk was a college professor who authored the original edition around 1919.<a href="#_ftn2" name="_ftnref2">[2]</a> White, who authored <em>Charlotte’s Web</em>, revised the book in 1959.<a href="#_ftn3" name="_ftnref3">[3]</a> Neither had unique authority to assert anything was or was not a rule.</p> <p>But surely the wide acceptance of the <em>Elements of Style</em> gave it credence after-the-fact? Nope. It’s one thing to wear a t-shirt with a nerdy grammar pun like “Poor Grammar Makes Me [sic].” It’s a different level to publish an article in the <em>Chronicle of Higher Education </em>titled “50 Years of Stupid Grammar Advice” tearing into Strunk &amp; White. But that’s what Professor Pullum did.<a href="#_ftn4" name="_ftnref4">[4]</a> He describes Strunk &amp; White as “grammatical incompetents” and their advice as ranging “from limp platitudes to inconsistent nonsense” that has “significantly degraded” students understanding of English.<a href="#_ftn5" name="_ftnref5">[5]</a> Ouch. And he’s not alone. Others have called the book unsystematic, chaotic, and unhelpful.<a href="#_ftn6" name="_ftnref6">[6]</a> But, to be clear, the book still has supporters.<a href="#_ftn7" name="_ftnref7">[7]</a> And not everyone agrees with Professor Pullum.<a href="#_ftn8" name="_ftnref8">[8]</a></p> <p><strong>It’s Much Worse Than You Think</strong></p> <p>Even if the <em>Elements of Style</em> is not perfect (and presumably no other book is), the legal community might silently agree on certain rules. Putting aside obscure stylistic choices, surely we agree on essentials like what a word means? Buckle up.</p> <p>Since time immemorial teachers and bosses pounced on subordinates for confusing “literally” and “figuratively.” Something is literally true when it can and did happen. It is figuratively true when it cannot or did not happen. So “When I heard the news my heart stopped” is figuratively true, unless after hearing the news my blood stopped circulating in which case it is then literally true. Only not. Consult a dictionary to discover literally and figuratively are sometimes synonyms. Merriam Webster has a persuasive article and video defending the definitions and explaining how authors can use “literally” hyperbolically to mean “figuratively.”<a href="#_ftn9" name="_ftnref9">[9]</a> There’s an indie romantic comedy here where former antonyms become synonyms.</p> <p>Here’s another skull-buster. Most of us bleed from the ears when we hear the word “irregardless.” A Pavlovian reflex shocks our system with feelings of valley-girl bastardized English. But oh yes, you guessed it. It is a word. In fact, one of Merriam Webster’s lexicographers (the people that write dictionaries) made a video defending it.<a href="#_ftn10" name="_ftnref10">[10]</a> “Irregardless” means “empathically regardless.”<a href="#_ftn11" name="_ftnref11">[11]</a> Oddly, the lexicographer recommends not using the word because so many people think it is not a real word.<a href="#_ftn12" name="_ftnref12">[12]</a></p> <p>English grammar is a mess.</p> <p><strong>What to Do</strong></p> <p>We want our readers to find us credible and to understand what we write. But grammar rules are unclear. And we are not going to attach an appendix showing we correctly used a comma on page six.</p> <p>Begin by accepting the inevitable. You usually have no idea what grammar rules your audience subscribes to. A judge might know a rule, not know a rule, or know a rule that is not a rule.</p> <p>Next, adapt to your audience. To write clearly you need to know what grammar rules exist—real rules, discredited rules, misunderstood rules, all rules. Even with maximum effort, you cannot avoid breaking some rule believed by someone somewhere. But, with this understanding you can ensure your writing is clear.</p> <p><u>When a Grammar Rule is Unclear, Strive For Clarity</u></p> <p>When your writing implicates an unclear grammar rule, prioritize clarity. Consider the that/which rule:</p> <p>The Safety Instructor asked the student to get the gas tank, <em>which</em> has red tape on it.</p> <p>The Safety Instructor asked the student to get the gas tank <em>that</em> has red tape on it.<a href="#_ftn13" name="_ftnref13">[13]</a></p> <p>In the first sentence there is one tank and it has red tape. <a href="#_ftn14" name="_ftnref14">[14]</a> “Which” introduces additional information. <a href="#_ftn15" name="_ftnref15">[15]</a> So, if the student were just told “Go get the gas tank” the student would return with the same tank because only one exists. <a href="#_ftn16" name="_ftnref16">[16]</a> By contrast, in the second sentence “that” introduces essential information; there are multiple tanks and the instructor wants the one with red tape.<a href="#_ftn17" name="_ftnref17">[17]</a></p> <p>But you cannot count on your reader taking away this distinction. Your reader may not know the rule or may have the rule reversed. So if it is important to understand there were multiple tanks and the instructor asked only for the one with red tape, you need to do more.</p> <p>You have a few options. You can avoid the that/which rule by rewriting the sentence more explicitly: there were eight tanks and the instructor asked for the one with red tape. Or you can add a clarifying sentence: When the student went into the storage room he saw a pile of tanks and grabbed the one with red tape.</p> <p>Ultimately, awareness of ambiguous grammar cannot prevent a reader from enforcing a random grammar belief. But that awareness can help us ensure the reader gets our message.</p> <p><u>If Most Judges Believe a Rule, Follow It</u></p> <p>Recall the figuratively/literally and irregardless examples. There we learned some grammar beliefs are incorrect. But you being correct according to an external source is irrelevant to your case. Write for your audience. If the court has certain grammar preferences, follow them.</p> <p>Think of a basic rule indoctrinated into you with no reasoning behind it. A rule like capitalize the first letter of each sentence. if you stopped capitalizing those letters, would it confuse anyone? would readers misinterpret your words? nope. but everyone would notice and everyone would think you are wrong. the historical reason for this rule doesn’t matter. even if you found a source saying it is unnecessary, the result will only hurt you.</p> <p>Although few courts publish elaborate style guides, you can discern grammar preferences from court opinions, former law clerks, and CLEs with the judges. Use that information to preserve credibility and avoid disruption.</p> <p><strong>Conclusion</strong></p> <p>When it comes to grammar, write for clarity not accuracy.</p> <hr /> <p><a href="#_ftnref1" name="_ftn1">[1]</a> George D. Gopen, <em>The Sense of Structure: Writing From the Reader’s Perspective</em> 196 (2004).</p> <p><a href="#_ftnref2" name="_ftn2">[2]</a> William Strunk Jr.; E.B. White, <em>The Elements of Style</em> xiii-xviii; 87 (4<sup>th</sup> ed. 2000); Geoffrey K. Pullum, &#8220;50 Years of Stupid Grammar Advice,&#8221; <em>The Chronicle of Higher Education</em>, p. 1 (April 17, 2009), <em>available at</em> http://www.lel.ed.ac.uk/~gpullum/50years.pdf.</p> <p><a href="#_ftnref3" name="_ftn3">[3]</a> Strunk &amp;White, <em>supra</em> n. 2 at 1; Pullum, <em>supra</em> n. 2 at 1.</p> <p><a href="#_ftnref4" name="_ftn4">[4]</a> Pullum, <em>supra</em> n. 2 at 1</p> <p><a href="#_ftnref5" name="_ftn5">[5]</a> <em>Id.</em> Pullum didn’t let it go after only one article: Geoffrey K. Pullum, &#8220;The Land of the Free and The Elements of Style,&#8221; 26 <em>English Today</em> 2, 102 (June 2, 2010), available at <a href="http://www.lel.ed.ac.uk/~gpullum/LandOfTheFree.pdf">http://www.lel.ed.ac.uk/~gpullum/LandOfTheFree.pdf</a>.</p> <p><a href="#_ftnref6" name="_ftn6">[6]</a> Tom Goldstein and Jethro K. Lieberman, <em>The Lawyers Guide to Writing Well</em> 9-10 (3d ed. 2016).</p> <p><a href="#_ftnref7" name="_ftn7">[7]</a> <em>See, e.g.</em>, &#8220;The 100 Best Nonfiction Books: No. 23 The Elements of Style by William Strunk and EB White (1959),&#8221; <em>The Guardian</em>, <em>available at</em> https://www.theguardian.com/books/2016/jul/04/100-best-nonfiction-books-all-time-elements-style-william-strunk-eb-white.</p> <p><a href="#_ftnref8" name="_ftn8">[8]</a> To see how some of Pullum’s critiques may be overstated, <em>see</em> Ross Guberman, &#8220;Did Strunk &amp; White Give “Stupid Advice?,” <em>available at</em> https://www.legalwritingpro.com/articles/strunk-white-give-stupid-advice/ (last visited May 20, 2018).</p> <p><a href="#_ftnref9" name="_ftn9">[9]</a> Merriam-Webster Dictionary, &#8220;Did We Change the Definition of ‘Literally’?,&#8221; <a href="https://www.merriam-webster.com/words-at-play/misuse-of-literally">https://www.merriam-webster.com/words-at-play/misuse-of-literally</a> (last visited May 20, 2018); Merriam-Webster Dictionary, &#8220;Literally- Merriam Webster- Ask The Editor,&#8221; <a href="https://www.youtube.com/watch?v=Ai_VHZq_7eU">https://www.youtube.com/watch?v=Ai_VHZq_7eU</a> (last visited May 20, 2018).</p> <p><a href="#_ftnref10" name="_ftn10">[10]</a> Business Insider, &#8220;‘Irregardless’ is a real word – you&#8217;re just using it wrong,&#8221; <a href="https://www.youtube.com/watch?v=bEJ2HF3xuFk">https://www.youtube.com/watch?v=bEJ2HF3xuFk</a> (last visited May 20, 2018).</p> <p><a href="#_ftnref11" name="_ftn11">[11]</a> <em>Id.</em></p> <p><a href="#_ftnref12" name="_ftn12">[12]</a><em> Id.</em></p> <p><a href="#_ftnref13" name="_ftn13">[13]</a> This is a variation of the rake example provided in Gopen, <em>supra</em> n. 1 at 5.</p> <p><a href="#_ftnref14" name="_ftn14">[14]</a> <em>Id.</em></p> <p><a href="#_ftnref15" name="_ftn15">[15]</a> <em>Id.</em></p> <p><a href="#_ftnref16" name="_ftn16">[16]</a> <em>Id.</em></p> <p><a href="#_ftnref17" name="_ftn17">[17]</a> <em>Id.</em></p> <div style="border: 1px solid #999999; background-color: #dadada;"> <p><em>Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O&#8217;Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.<br /> </em></p> </div> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/cdwiVjO6qDU" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/the-grammar-dilemma-which-rules-are-worth-knowing/feed/ 0 https://cbaclelegalconnection.com/2018/07/the-grammar-dilemma-which-rules-are-worth-knowing/ 2018-07-17 15:34 +00:00 2018-07-17 09:34 -06:00 http://cbaclelegalconnection.com/?p=39353 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/0ivsJMNkMX8/ Updates 18th Judicial District Arapahoe County court appointments Douglas County Elbert County judge appointments Lincoln County Darren Vahle Appointed to 18th Judicial District Court On Monday, July 16, 2018, the Colorado State Judicial Branch announced Governor Hickenlooper's appointment of Darren Vahle to the 18th Judicial District Court. He will fill a vacancy created by the appointment of Hon. Carlos A. Samour, Jr., to the Colorado Supreme Court, effective July 1, 2018. Tue, 17 Jul 2018 15:27:36 Z https://cbaclelegalconnection.com/2018/07/darren-vahle-appointed-to-18th-judicial-district-court/#respond Susan Hoyt <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2018/07/darren-vahle-appointed-to-18th-judicial-district-court/vahle-formatted/" rel="attachment wp-att-39354"><img class="alignleft size-full wp-image-39354" src="http://cbaclelegalconnection.com/wp-content/uploads/2018/07/Vahle-Formatted.jpg" alt="" width="180" height="245" srcset="https://cbaclelegalconnection.com/wp-content/uploads/2018/07/Vahle-Formatted.jpg 180w, https://cbaclelegalconnection.com/wp-content/uploads/2018/07/Vahle-Formatted-110x150.jpg 110w" sizes="(max-width: 180px) 100vw, 180px" /></a>On Monday, July 16, 2018, the Colorado State Judicial Branch announced Governor Hickenlooper&#8217;s appointment of Darren Vahle to the 18th Judicial District Court. He will fill a vacancy created by the appointment of Hon. Carlos A. Samour, Jr., to the Colorado Supreme Court, effective July 1, 2018.</p> <p>Judge Vahle is currently an Arapahoe County Court judge and the presiding judge of the Arapahoe County Court. He oversees a primarily criminal docket with some civil cases. Prior to his appointment, he was a Senior Deputy District Attorney for the 18th Judicial District. He has also served as a judge at mock trial competitions. He received his undergraduate degree from Westmont College and his law degree from the University of Denver.</p> <p>For more information about the appointment, <a href="https://www.courts.state.co.us/userfiles/file/Media/Judge_Appointments/2018/JD18%20-%20Vahle.pdf" target="_blank" rel="noopener">click here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/0ivsJMNkMX8" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/07/darren-vahle-appointed-to-18th-judicial-district-court/feed/ 0 https://cbaclelegalconnection.com/2018/07/darren-vahle-appointed-to-18th-judicial-district-court/ 2018-07-17 15:27 +00:00 2018-07-17 09:27 -06:00