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October 2007

CBA LITIGATION COUNCIL
OCTOBER 6, 2007 MEETING MINUTES

LOCATION:
  CBA offices, Denver, CO

COUNCIL MEMBERS PRESENT:

In Person:     

Vice Chair:  Alden Hill
Secretary:  Lorraine Parker
Peter Goldstein
Larry Schoenwald
Rich Caschette
Mickey Smith
           
Via Phone: Doran Matzke; Kim Schutt   

CBA Personnel: Michael Valdez; Brock Wood, CLE

OTHERS PRESENT: Jane Howell, Executive Director of the Colorado Commission on Judicial Performance   
           
1.    CALL TO ORDER:  9:00 AM

2.    APPROVAL OF MINUTES:  The June 2, 2007 Meeting Minutes were approved by unanimous vote after motion.

3.    REPORT FROM JANE HOWELL, EXECUTIVE DIRECTOR OF THE COLORADO COMMISSION ON JUDICIAL PERFORMANCE. Jane Howell presented an overview of the process, which includes many recent rule changes adopted by the State Commission.  She first reviewed the historical background of the Commissions on Judicial Performance, followed by an overview of the commissions – the districts, membership, appointing authorities, training requirements, recusal, and the role of Chief Justice and Chief Judge. 
The evaluation process has several changes which have been approved and to into effect January 1.  The process includes a lengthy self-evaluation, courtroom observations, review of decisions/opinions, consideration of survey results, review of case data, interviews of the judge and preparation a narrative profile with recommendation on retention.  Commissions may conduct public hearings and may consider oral or written information from a person who had appeared before the judge the previous year. 
Jane also discussed the surveys.  There are more surveys now with the rewrite of the rules.  Appellate judges are now required to survey the district judges and district judges survey county court judges.  Data is now being collected quarterly; they are doing a much better job of collecting data.  Data is collected from attorneys, jurors, litigants, probation officers, crime victims, GALs, CASA volunteers, peace officers.  They are now sending out questionnaires on all the judges all the time, not just those standing for retention.  Now every two years judges will get evaluated rather than just at the end of their term.  This has resulted in a lot more work for the volunteers on the commissions.  Appellate judges are now surveyed by the staff attorneys as well as other appellate judges, trial judges and attorneys appearing before them.  Staff attorneys have long requested that they be surveyed concerning appellate judges.
The interview process was outlined.  There is a lengthy list of topics which may be discussed during the interview.  Recommendation:  each member of the commission must vote to retain or not retain.  If the result is evenly divided, then the commission has “no opinion.”  New:  a commission shall recommend retaining any judge or justice who receives an average of at least 3.0 out of 4.0 for the survey responses AND has no opinions issued more than 180 days after it was submitted, unless the other evaluation information indicates a significant performance problem.  Commission shall not recommend retaining a judge who receives less than 3.0, with some exceptions.
Commissions may also put judges on improvement plans, and some judges in the state are on improvement plans.  Contents of the improvement plan are confidential, but the fact that there is one is not.
Narrative profiles now include summary of survey comments.  Over 50% of such comments pertain to judicial demeanor.  Six judges have been non-retained in Colorado; all but one were non-retained due to demeanor issues.  The profiles are now limited to 500 words; some had too much fluff in them.  The timelines for publication were outlined.  Judges must declare to stand for retention the day before the recommendations are published.  If the judge decides not to stand for retention, the recommendations etc. are not published.
Jane trains new judges within six months of their appointment.  Evaluation of magistrates by the State Commission does not work because magistrates are supervised and evaluated by the Chief Judge, and are FTEs.
The Council thanked Jane for the presentation, and her hard work for the Commission.

4.    FINANCIAL REPORT.   The attached financial report was distributed.  There is approximately $74,000.00 on hand.  Greg notes that we had more money at the end of the fiscal year than we expected.  He will prepare a budget for the November meeting. 

5.    COMMITTEE AND SUB-COMMITTEE REPORTS:

A.    Supreme Court Rules Committee.   Peter Goldstein had the opportunity to speak with Judge Jane Tidball at the rules committee regarding her jury selection procedure.  There were three other judges in the conversation.  There is a conflict between C.R.C.P. 47(h) (which sounds permissive) and CJI Civ-4th opening instruction which states that each party “must” exercise peremptory challenges.  Lorraine Parker moved to request Peter to propose a change of the wording of Rule 47(h).  Second by Larry Schoenwald.  Peter’s friendly amendment:  he will circulate a draft proposal.  Amendment accepted.  Motion passed unanimously

B.    Board of Governors.    No report.

C.    Professional Committee.  No report.

D.    Securities Sub-Section.    No report.

E.    Appellate Practice Committee.  Robert Anderson has had no success finding a substitute from the appellate practice committee.

F.    Section Newsletter.  Kim Schutt reported that she would prepare a newsletter with information from the reports from Justice Mullarkey and Jane Howell, as well as Peter’s proposed rule change.  She is targeting next month to get it out.

G.    CLE update.  Brock Wood reported on the Tort Law Update on 9/7/07. There were 54 attendees.  It was a good program and will likely increase in popularity next year.  The program consisted of an update on new law in each area over the past 12 months.  Managing Commercial Litigation program two days ago had 47 attendees.  Judge Nottingham, Dan Hoffman and Jim Lyons had a segment with the most persuasive techniques for presentation of such cases.  Coming up:  10/25/07 ADR in the Workplace, Adverse Depositions 11/1/07, Art and Science of Effective Witness Preparation 12/6/07, 12/12/07 Appellate Practice:  Better Briefing, Writing and Argument by Judge Webb.  Litigation Bootcamp II will take place Spring 2008.  This one will cover trial and post-trial issues.  Brock circulated his draft of the program; he needs names for each program and requested the Council’s help with suggestions.  No request as of yet for funding from the Litigation Section.

6.    LEGISLATIVE UPDATE.  Michael Valdez reported on the Judicial Performance Evaluation Workgroup which was appointed by Justice Mullarkey and which met this past Thursday to commence presentations by the various stakeholders.  Michael distributed the CBA Task Force’s draft proposed legislation and position paper.  Then a side-by-side comparison will be prepared for evaluation.

John Andrews has a new initiative:  “12 years and you’re out” term limiting judges to 12 years. He made all terms four years for all courts. He has made it prospective, effective after 2010.

7.    OLD BUSINESS

A.    Follow up re Institute for the Advancement of the American Legal System. The Institute’s proposals are now similar to the CBA’s with the exception of moving the Commission’s office to another location.

B.    Preemptory Challenges Practices.  See Section 4(a) above.

C.    Speakers for Future Meetings.  Greg is working on bringing in John Eckstein from the Professionalism Committee regarding the vignettes. John Gleason will speak in December and Jerry Marroney in January. Judge Nottingham February or March 2008.

8.    NEW BUSINESS.

A.      E-filing issue:  Litigation Section member Steven Gall has raised a concern that pro se litigants are not required to pay e-filing fees.

B.    New members for council.  We need to replace Megan Brynhildsen and Robert Anderson.  Greg Martin requested to provide the Council with a list of names with their backgrounds and experience.  Michael will also send us a list of appellate sub-committee members.

9.     ADJOURNED at 11:25 a.m.  Next Meeting to be November 3, 2007 at CBA offices, at 9:00 AM. 

Prepared by:

 
/s/ Lorraine Parker                   
Lorraine Parker, Secretary

Approved:   _________________________
            (date)