Business Newsletter Header
July 2015
From the Colorado Bar Association
Business Law Section

Ed Naylor, Editor
In this issue...
Swan Song
By The Hon. John L. Kane, Jr.

Judge John L. Kane delivered the keynote address at the Colorado Trial Lawyers Association Spring Dinner. These are his remarks. Reprinted with permission.

Newspapers and journals are filled with reports that lawyers and judges are dissatisfied with our profession. I understand, and I hope tonight to offer some insight that may be of use to you as you consider your own place and life in this endeavor. Of the million or so lawyers in the United States—more than in any other country—over half are said to be unhappy and seriously considering leaving the practice of law or the bench. A burgeoning industry of coaching, counseling and career change assistance has developed to guide the poor, unhappy wretches to new lives and new opportunities. I have yet to hear that these transitions end in better places, even though those who make the trip are reluctant to admit leaving the law wasn’t such a great idea.

While law schools continue to produce more lawyers than the profession can absorb, they insist that a legal education is worth its steep price regardless of whether the graduate intends to practice law or engage in some other pursuit. Given the huge debts of most graduates, I suggest that less income producing callings will not accommodate service of the debts. As such, teaching is not worth the price. Nor is the ministry. Nor civil service. Nor, for that matter, is counseling or coaching—and I doubt there are enough career opportunities in investment banking to fill the gap.

Duke Law School now offers a course called “Well-Being and the Practice of Law.” The course description reads: “Optimistic and happy people outperform their counterparts on almost every measure of job success with the notable exception of one group: lawyers. Psychological research suggests that on the whole pessimists perform better in law school and in private practice. Since research also shows that pessimism can be a predictor of depression and/or lower feelings of life satisfaction, this raises a question among many academics who study well-being: What do we do about lawyers?”

Duke is not the only law school to offer a course on happiness. In the legal world, attorney well-being and depression are a ubiquitous concern, but no formula or theory has been proposed to guide lawyers who seek well-being as practitioners, or for that matter, as judges. The philosophy of positivism and its progeny, so dominating for so long in the legal academy, is one of the root causes that nurtures pessimism. But there is some encouraging news!

Professors Lawrence Krieger of Florida State College of Law and Kennon Sheldon of the Department of Psychological Services at the University of Missouri recently published a paper for which they interviewed thousands of lawyers in a four state area. Their research shows surprising results: prestige and income, law school debt, class rank, law review and law school ranking have little or no correlation with well-being. To the contrary, the group with the lowest incomes and grades in law school, public service and legal aid lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions with the highest grades and incomes.

What, you may ask, are the law schools missing?

What the law schools are missing, and what provides the foundation for well-being, is serving people. The skill sets law schools teach are tools with no overarching purpose. Satisfaction in law comes from what Harvard legal philosopher Lon Fuller described as “the prevention of indecencies in the use of power.” In representing people in the extremities of their experience, you are defending them against the indecencies of power. The pride one feels in the legal profession and the satisfaction obtained from practice are demonstrated in the lives of the people you guide through the exceptional circumstances of their lives.

Consider one of these indecencies. In Colorado, with a population of 3.5 million, there are a mere 48 lawyers engaged full-time in representing the more than 900,000 men, women, and children who live on less than $30,000 per year for a family of four. That is one legal aid lawyer for every 18,750 people. Last year Legal Aid served 12,000 of them in matters relating to the basic necessities of life: food, shelter, medical care and protection from violence and physical abuse. Consider also that Colorado Legal Aid has less than half the staff it did thirty years ago, and over three times as many clients. So much for equal justice under law.

And it isn’t just the poor who are subject to the indecencies of power. I am not here tonight intending to seek contributions. That is something I am prohibited from doing. I am here tonight to kindle a sense of resolve and outrage in your hearts. If you feel that outrage, I am sure you will take appropriate action. I want you to know that there is one law firm represented here tonight by a large contingent in which all of its lawyers, partners and associates alike, pride themselves on each dedicating 25% of their time to pro bono cases. They do so and they prosper and they are happy campers.

As lawyers, you seldom see people at their best. You frequently witness injury, oppression and injustice, and you are expected, even demanded, to take action against it. The one thing you cannot do, and still succeed as a lawyer, is to be indifferent to oppression and injustice. To succeed in this profession, to have a sense of well-being, to revel in it, you must have a fire in the belly. Performing legal services in a mechanistic way, measuring success by the billable hour or the size of the fee with no keener value, and ignoring or denying the moral and intellectual justifications for what one does, will turn even the most lucrative law practice into a humorless and moribund job.

The first step in the process of achieving a sense of well-being is to recognize the suffering, the experience, of those who are subjected to injustice. The word “deprivation” in its literal sense is the key to understanding this. To deprive is to “de-privatize.” To take away that person’s sense of being an individual, a self that is unique. To deprive means to sap a person of his or her individuality, his personhood, his mattering, and to reduce him or her to a number or the product of an algorithm.

This is precisely what happened in the concentration camps when individuals were tattooed with a serial number on the arm; it is what happens when prisoners are given a number, not a name. It is what happens when a government agency keeps a record of all of your phone calls and emails. Of course not all deprivations are injustices, but all injustices are indeed deprivations. Justice is achieved when an individual’s unique value is recognized and his life is restored to balance so that he is not pushed around by indecencies in the use of power. To be just is to recognize that and to know how to create that balance. This takes imagination, effort and skill.

There are fewer and fewer trials in which the advocate can exercise his imagination and skill. This decline augers against the state of well-being in the profession. It is attributed to a number of factors including the excessive costs of discovery, the cavalier acceptance and expense of expert testimony as though it were holy writ, the all-too-frequent use of summary judgment and, to an even greater extent, the shift of judges from being adjudicators to judicial managers. The loss of trials deprives the lawyer.

Just think what plea bargaining and guideline sentencing have done to the practice of criminal law, or the shift from its investigative basis to one dependent on the prevalence of informants. Or what arbitration, mediation and confidential settlements have done to the once vigorous adversarial presentation of civil controversies to juries in full public view, reported by an active and knowledgeable press. How can a society govern itself and respond to the dehumanization of values when its controversies and issues are lost in a vortex of sealed documents and depositions? Have we placed too much emphasis on the closing of the law’s work to public view and judgment? We do know that justice is something most people cannot afford and even fewer have experienced it.

Moreover, the decline of jury trials to near extinction is a product of the law itself. Each of you knows more than I do about caps on damages and the devastating effects they have on people who are injured. It is simply not possible to put their lives back into balance when the gates of justice are only half open.

I want to offer you what I think is a fresh insight into this situation. The jury trial is vanishing because to a large measure those exercising power, the legislatures and the higher courts, both state and federal, are distrustful of the judgment of fellow citizens. The jury is the very essence of democratic government; it is truly government by the people, and those in power do not trust jurors to render verdicts that perpetuate the economic domination of special interests. It is a myth that we live in a democracy. What we live in precisely is an oligarchic imperialism.

Every year special interests line up before the state and federal legislatures and ask for more immunities from liability. That is immunity from the verdicts of juries. Verdict, of course, means literally “a true declaration.” Take a quick look at the immunities granted to ball parks, ski resorts, reservoir owners, ditch companies, firearm manufacturers, pharmaceutical companies, hospitals, health care providers, and that most archaic and anti-democratic, anti-republican doctrine of all—sovereign immunity.

There are also numerous federal provisions that slink into our jurisprudence under the strangest names: The Public Readiness and Emergency Preparedness Act that is really a ban on claims arising from so-called “covered countermeasures,” which means in translation, a drug, biological product or device that the Secretary of Health and Human Services authorizes for emergency use to deal with what she determines to be a public health emergency. (Think in this context of the swine flu epidemic of 1976.) This so-called Prep Act provides “as an alternative to litigation,” [that] victims may accept payment for death or physical injury from a special fund “if Congress has appropriated money for that purpose.” If there is no appropriation, the ban on litigation still exists.

Lurking in the shadows of the statutes dealing with navigable waters is the Oil Pollution Act of 1990 with limits of liability for offshore facilities, putting a cap on damages for companies such as Exxon and BP and prohibiting liability of any kind for the United States government from or by floodwaters at any place. Likewise, there is the National Vaccine Injury Compensation Program providing that no person can bring a civil action for damages in an amount greater than $1,000 against a vaccine administrator or manufacturer in any court without first filing a petition for compensation and obtaining a judgment from the U.S. Court of Federal Claims, which of course does not have juries.

There are courts of appeals that can and do correct errors when juries are not properly instructed or when it is evident that because the trial judge did not do his job competently a jury departs from the law and goes off on a tangent of its own. But the judge or the jury cannot err or even do what is right if the issues can’t be submitted for trial in the first place. Not only do those with economic power not want to be exposed to the prospect of financial liability for their wrongdoing, I suggest to you they do not want our society, as represented by their fellow citizens, sitting as a jury, passing judgment on them. It isn’t just a matter of money; it is also a desire to avoid a moral judgment.

Whether trials continue to exist or, perish the thought, the legal system becomes yet another bureaucracy, the value of being a lawyer and the advocate’s sense of well-being will not change. When you provide order to families living in chaos, when you afford dignity to those who have been degraded, when you eloquently express the highest aspirations of our culture where otherwise there is greed and corruption, when you take upon yourself the awesome task of ending a person’s despair, in sum, when you become another’s champion, you succeed. Remember that the lantern of Diogenes can illuminate the dark night of the soul.

If you accept these challenges and burdens as the mantle of our profession, you will have no need of a career counselor, a life coach or a career change service.

As a footnote to these remarks, I hope that this is my last public speech. I think it is past time that this torch is handed on to someone younger, who has more relevant things to say. Someone who, unlike me, does not consider the cell phone to be a curse on mankind.

But I consider myself lucky. Any number of people, some much smarter, could have been selected to fill my place on the bench.

My chief regret as a judge is both professional and personal: my attempts to implement a new concept of civil procedure, a new way of trying jury cases in order to lower costs and preserve the jury trial, have not taken root. I preside over significantly fewer jury trials now than even five or ten years ago. We haven’t reached bottom yet, but history teaches us that revolutionary ideas fail when there is no revolutionary class to support them.

The costs of jury trials have made them unavailable to an ever-growing percentage of our population. Class actions, that make trials more accessible for individuals, face increasing restrictions formulated by lobbyists, enacted by Congress and decisions by our higher courts. The number of causes of action authorized for trial by jury is decreasing because of compulsory arbitration. The number of caps on damages and creation of new immunities is a growth industry. When will society say, “Enough.”

I have a foreboding sense that I am playing in the fourth quarter, but even with my failure to stimulate procedural reforms, I am fortunate to preside over the search for justice by lawyers who are dedicated to that effort—and when it happens, it is magic. For that, and because of your efforts, I am the luckiest person I know.

I part with a final bit of advice: When you fight for Justice, never give up! Never give up! Follow the words of the ancient Irish song: I am hurt but not slain, I will lie myself down awhile and bleed, And I will rise to fight again.

The Hon. John L. Kane, Jr. is a United States federal judge on the United States District Court for the District of Colorado. He received his commission on December 16, 1977, and assumed senior status on April 8, 1988.

Business Law Section Activities
Get Involved with the CU/DU Transactional Cup Competition!

The Business Law Section is once again looking for practitioners to volunteer with the Transactional Cup Competition. This is the second year the Business Law Section has organized and sponsored the Competition between students at both Colorado law schools. It is a great opportunity to connect with law students who are interested in business law and to get involved with the Section!

This year’s Competition will be Friday, Oct. 16 at CU and DU, and Saturday, Oct. 17 at the Colorado Bar Association Offices. If you are interested in helping with the Competition, please contact Nicole Black or Stacey Bowers.

Antitrust and Consumer Protection Subsection

Save the dates!

Antitrust Issues in Healthcare—Week of September 1
Presented by Richard B. Benenson of Brownstein Hyatt Farber Schreck, LLP.

Joint and Several Liability in Multiple-Product Conspiracy Cases— Tuesday, October 13
Presented by Jeffrey S. Roberts of Faegre Baker Daniels.

Bankruptcy Subsection

Case Law Update—Tuesday, Sept. 15, 4–6 p.m.

Join us for a case law update presented by Hon. Thomas B. McNamara (U.S. Bankruptcy Court), David J. Warner (Sender Wasserman Wadsworth, P.C.), Julian Ellis (Lewis Roca Rothgerber).

The program will be held at the CBA-CLE Classroom, 1900 Grant Street, Suite 300, Denver. This program has been submitted for 2 general CLE credits. There is no cost for this program and a complementary reception will follow the presentation. Please RSVP to (303) 860-1115 x727, email lunches@cobar.org, or learn more and register online.

New Bankruptcy Subsection Co-Chairs

Matthew Faga (Law Clerk to the Hon. Michael E. Romero) and Mark Larson (Allen & Vellone, P.C.) will take over as the new co-chairs of the Bankruptcy Subsection (July 2015—June 2017). If you have ideas for future subsection events or CLEs, please contact Matt and Mark.

Bankruptcy Court Technology Trainings

The Bankruptcy Court and the CBA Bankruptcy Subsection are offering a free, one-hour, courtroom technology training in Courtroom C, U.S. Bankruptcy Court. Training sessions will be held from 10 to 11 a.m. on August 14, September 18, October 9, and November 13. For more information on the training, please contact Matthew Faga. Register online by clicking on the links for the dates listed above, or RSVP to (303) 860-1115 x727 or email lunches@cobar.org.

Financial Institutions Subsection

Enterprise Risk Management Evolution for Banks—Wednesday, Sept 16

Noon to 1 p.m. (option to purchase lunch)
Presenter: Mary Peter, Director of Enterprise Risk Management, Eide Bailly
Co-sponsored by CBA-CLE

All banks are facing an increased number of risks that challenge their business and strategic objectives. Risk management methods have had to change as banks encounter new, faster, and more inter-related risks from both internal and external factors. Traditional risk management is typically structured in a silo environment, with each department or function managing their own risks. Enterprise Risk Management (ERM) is a prospectively driven process to look into the future for opportunity, as well as learning from the past, to create new risk response plans that support the organizations' strategic objectives. It is designed to bring risk management and other banking functions together and look at them from a holistic perspective.

The program will be held at the CBA-CLE Classroom, 1900 Grant Street, Suite 300, Denver. This program is offered for 1 general CLE credit. Learn more and register online.

Save the Date for the upcoming Financial Institutions Subsection Program—Wednesday, Oct. 21, 2015.

International Transactions Subsection

Doing Business in Emerging Markets: Legal Hurdles and More Regarding Natural Resources—Tuesday, Sept. 8

Noon to 1 p.m. (option to purchase lunch)
Presenter: H. Kristi Disney, J.D., LL.M, Executive Director, Sustainable Development Strategies
Co-sponsored by CBA-CLE

Get up to speed on the use and conservation of natural resources in emerging markets, and the legal hurdles encountered. Your experienced presenter works on a global scale with governments, companies, communities and others on frameworks for development of natural resources in a sustainable and legally compliant manner. Learn concepts, tips, traps and best practices so that you can better advise your clients when they doing business or investing abroad with respect to natural resources.

The program will be held at the CBA-CLE Classroom, 1900 Grant Street, Suite 300, Denver. This program is offered for 1 general CLE credit. Learn more and register online.

Save the Date for the upcoming International Transactions Subsection Program—Tuesday, Nov. 10, 2015, Noon to 1 p.m.

M&A Subsection

Introduction to Mergers and Acquisitions of Franchise Companies—Tuesday, Sept. 1

8 to 9 a.m.
Presenter: Craig Knobbe, Esq., Moye White LLP
Co-sponsored by CBA-CLE

The issues that arise in merger and acquisition transactions can be complex and challenging. These issues can stem from many sources, but what if the company being acquired is a franchise company? Treating the acquisition of a franchise company in the same manner as other acquisitions can lead to significant and costly problems. This program will introduce you to some of the unique issues, risks and considerations related to the acquisition of a franchise company. For example, it is important to understand how the franchise laws impact the operation of the franchise company’s business (both pre and post-closing) and the value of the franchise company’s assets. Additionally, the due diligence investigation of a franchise company is very different than the typical due diligence process. Lastly, it is necessary to fully understand the vital role the franchisees play in the company being acquired and the potential difficulties that might be encountered with the franchisees before or after closing. Overall, when the unique challenges of a merger or acquisition of a franchise company are well understood, it is much easier to avoid significant and costly problems.

The program will be held at the CBA-CLE Classroom, 1900 Grant Street, Suite 300, Denver. This program is offered for 1 general CLE credit. Learn more and register online!

Save the Date for the upcoming M&A Subsection Program—Tuesday, Oct. 6, 2015, 8 to 9 a.m.

Securities Subsection

Congratulations to Elizabeth Karpinski Vonne, Davis, Graham & Stubbs LLP, and Lucas T. Ritchie, Jones & Keller, PC. Elizabeth and Lucas are our 2015–17 Subsection Co-Chairs!

CBA-CLE Information

Unless noted, programs are held at the CBA-CLE offices, 1900 Grant St. Ste. 300, Denver

Mastering Microsoft Word in the Law Office

Thursday, August 13, 9 a.m. to 4:45 p.m.

This is advanced training on how to conquer Word formatting with styles to save time and create better legal documents. Program highlights include: create, share, automate, and manage your electronic documents step-by-step; create complex legal documents with ease, speed, and accuracy, no matter your skill level, and make document drafting easy and efficient!

This program is offered for 7 general CLE credits. Learn more and register online.

2015 Colorado Legal and Technology Expo—FREE for the Colorado Legal Community—Featuring the Latest in Technology Innovations!

Friday, August 21, 8:30 a.m. to 4:30 p.m.

The Colorado Legal and Technology Expo offers a chance to learn about the latest in legal services and technology that can help you and your firm improve efficiencies and find the best law practice management tools available.

There will be an exhibit area with a variety of legal vendors showcasing their services and products, plus a series of short, informational sessions that will review new technologies in further detail. Not only can you hear about the new products, but the Expo offers an opportunity to test them out and ask questions from the experts.

The program will be held at the Warwick Hotel, 1776 Grant Street, Denver. This year, three 50-minute CLE accredited presentations are offered for a nominal registration fee. Learn more and reserve your spot today!

Hanging Your Shingle

August 20–22
Sponsored by the Lawyer’s Professional Liability Committee and the Solo-Small Firm Section of the Colorado Bar Association

There is a wealth of information packed into two and half days. If you are starting your own firm, this program is invaluable. Program highlights include: Appreciating the Difference Between Not Working for Someone Else and Working for Yourself; Writing Your Business Plan; What Does a Bank Want to See Before It Loans Money or Extends a Line of Credit?; What Type of Entity Should You Choose When Starting Your Law Firm?; All Things Accounting and Finance: From Accounts Payable to Billable Hours to Accounts Receivable; Trust Account Management and Fee Agreements; Key Aspects of Law Practice Management; Manage Your Malpractice Exposure Malpractice Insurance; The Practical Application of the Rules of Professional Conduct; Marketing and Business Development; Technology: Your First Partner; The Importance of Social Media in Starting Your Own Firm; Ethics of Social Media; Professionalism in Your Practice; and The Value of Getting a Mentor.

This program is offered for 18 general CLE credits, including 7.9 ethics credits. Learn more and register online.

Save the Dates: 2015 Business Law Institute—October 28–29

Grand Hyatt Hotel, 1750 Welton Street, Denver

Don’t miss the Rocky Mountain region’s premier Business Law CLE Event—topics this year include:

  • Bankruptcy Filings and Trouble in the Oil Patch
  • Case Law and Legislative Recent Developments
  • EB5 Financing and Foreign Investors
  • Financial Statement Anatomy for Lawyers
  • Forming and Funding Early State Companies
  • Marijuana Investments and Commercial Banking
  • Must-Knows for Your Cross Border Work, Including Impact of the Trans-Pacific Partnership
  • Social Responsibility: Doing Good While Also Making Money and Protecting Shareholder Interests
  • Update from the Secretary of State’s Office

Registration and other information to come soon!

CLE Membership Program for New Attorneys

For attorneys in their first 5 years of practice!

New attorneys can get an “edge” in their practice by joining the CBA-CLE New Lawyer Edge Membership program. New Lawyer Edge is designed to help new attorneys transition from law school to law practice, with tools and resources for success. The membership includes: Unlimited Free Attendance at Live “Build Your Practice” CLE Seminars; a 50% discount on all other Live and Live Webcast CBA-CLE Seminars; 24/7 online access to all Basics and Fundamentals Homestudies; 50% discount on all other online CBA-CLE Homestudies; a 20% discount on CBA-CLE Books; plus other research resources and networking opportunities!

The program is only $199 for 3 years for CBA members in their first 5 years of practice—not per year—$199 total! New attorneys can sign up now; learn more and register online.

Recent Homestudies

Consumer Bankruptcy Update

Emerging Trends in Economic Damages, Business Valuation and Lost Profits

Closely Held Businesses: Strategies for Tackling Key Issues

Check out the complete catalog of CLE Homestudies—search by practice area or credits.

CBA-CLE Books

Colorado Bar Association CLE offers a number of substantive publications including Practitioner’s Guide to Colorado Business Organizations, 2nd Ed. Browse the Table of Contents for more details.

Contributions for future newsletters are welcome —
Contact Ed Naylor at ed.naylor@moyewhite.com or 303-292-2900

This newsletter is for information only and does not provide legal advice.

Follow the CBA: Facebook Twitter LinkedIn GooglePlus YouTube

TO UNSUBSCRIBE: Please email mhaywood@cobar.org if you no longer wish to receive this email update. Thank you.

Archive Newsletters