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March 2008

CBA LITIGATION COUNCIL
MARCH 1, 2008 MEETING MINUTES


LOCATION:  CBA Offices, Denver, CO 

COUNCIL MEMBERS PRESENT:

In Person:
Chair, Peter Black
Vice-Chair, Alden Hill
Peter Goldstein
John Purvis
Larry Schoenwald
Sandra Wick Mulvany
Rich Caschette
Mickey Smith
Jon Sands
Brad Breslau
Kathie Riley
Andy Toft

Via Phone: Kim Schutt
   
CBA Personnel: Greg Martin; Michael Valdez
   

OTHERS PRESENT:  Chief Judge, Edward W. Nottingham (U.S. District Court) and visitors, Paul Karlsgodt and Casie Collignon

1. CALL TO ORDER:  9:00 AM and APPROVAL OF MINUTES:  The January 5, 2008 Meeting Minutes were approved with edits to correct typos of “Kime” to “time” and to reflect the full name of Sandra Wick Mulvany.

2. REPORT FROM CHIEF JUDGE NOTTINGHAM.

• As of April 1, 2008, the U.S. District Court in Colorado will be short three judges, even though seven judgeships have been authorized since 1984.  In 2000, a judicial conference for U.S. District Court judges recommended two additional judges for the District of Colorado, but Congress has not yet acted upon that recommendation.  Based on population growth and workload, nine District Court judges should be authorized.

• Colorado’s U.S. Senators are deadlocked on the methodology for selecting the judges.  Senator Salazar’s Commission plans to have their recommendations by March 15.  Senator Allard apparently recommended candidates for four judgeships last November and three after Judge Figa died.  Because of the time the process takes for the FBI investigation and the Congressional approval, Judge Nottingham does not expect additional judges to be appointed before late 2009, probably creating a backlog.  In the meantime, he expects assistance from Wyoming judges who have a lower case load.

• His suggestion is that visiting judges actually take a portion of the caseload, including dispositive motion hearings, rather than merely be assigned a trial, which frequently doesn’t go.

• He doesn’t expect a judgeship to be created for Colorado Springs within the foreseeable future.

• There is political pressure for a full-time judge in Durango, but he doesn’t think this is justified by the actual caseload.  There will be a greater effort for the judges to travel and handle cases in Grand Junction and Durango.

• If there is a backlog because of the failure to appoint new judges, dispositive motions in civil cases (e.g., MSJ) will be delayed, reducing the number of cases which settle early.

• We are a one-district state, like Wyoming and Utah, whereas, Louisiana has three districts, 37 judges and multiple courthouses, stemming from the days when the southern senators had control.

• The present trend is to centralize the judges in one location to facilitate face-to-face dialogue.

• Videoconferencing is doable for out-of-metro lawyers who want hearings with Denver judges.  For example, a  motion for summary judgment could be heard with attorneys participating from the Grand Junction courthouse with a judge in Denver, without any additional cost to the litigants.

• Federal courts have still not approved the unbundling of cases because it violates Rule 11; therefore, precluding limited appearances in Federal Court as well as ghostwriting.

• Diversity cases, though still not popular with the Federal bench, are not earmarked as low priority barring a statute giving priority to some other type of case.

• Attorneys must file electronically, but pro se litigants may still file paper documents which are electronically scanned.

• There is no plan to streamline or standardize local practice rules, but more uniformity may result from regular meetings among the judges.  For example, his policy on Rule 56 motions, requiring a statement of undisputed facts, could be adopted by all of the judges as a result of their frequent conferences.

3.  FINANCIAL REPORT. The CBA Litigation Section financial statement was distributed for the seven- month period, ending January 31, 2008 by Greg Martin.

4.  COMMITTEE AND SUB-COMMITTEE REPORTS

A.  Supreme Court Rules Committee (Peter Goldstein & Jon Sands).

  • Under Rule 121, failure to respond to a motion may, in the discretion of the court, constitute a confession of the motion.  Apparently, there is case law which provides guidance as to when a failure to respond does not constitute a confession, such as with Rule 56. 

 

  • The latest controversy involves Rule 12(b)(5).  There is a difference of opinion on the Rules Committee whether rules such as this should be amended to adopt Court of Appeals decisions interpreting it or whether the rules should remain the same, notwithstanding such appellate decisions.  When the Carlson and Svensen cases were decided by the Court of Appeals, the committee did not change the rule to reflect those decisions.  Jon Sands moved to adopt Peter Goldstein’s position that a rule should not be changed just because of interpretation by the Court of Appeals, the motion was seconded by Larry Schoenwald and passed unanimously.

 

  • The proposed modification to CRCP 47(h) regarding peremptory challenges was not approved by the Rules Committee because of the provision that peremptory challenges cannot be waived.  This language needs to be modified because it would prohibit parties from agreeing to fewer peremptories.  Mickey Smith suggested merely adding the language “except as agreed upon by the parties.”  Suggestions for a modified provision should be sent to Peter Goldstein or Jon Sands before the next meeting if possible.

B.  Board of Governors (Jon Sands).

  • During our meeting, the Board of Governors was simultaneously meeting  to formulate a position on fighting term limits initiatives, including the amount of funding to be recommended for that purpose.  Michael Valdez informed us that the Executive Council has already authorized funding and will approve up to $250,000 for that purpose.

C.  CBA Task Force on Judicial Performance.

  • Michael Valdez discussed S.B. 54 authorizing surveys of magistrates rather than  evaluations.  The proposal is for surveys to be completed by lawyers and litigants.  There would be 12 surveys completed by 12 lawyers regarding each magistrate, subject to review by the chief judge of each court.  State magistrates are considered employees who are hired and fired by the chief judges across the state.  There is also a provision in S.B. 54 overriding the rigid 3.0 numerical evaluation of judges, which presently results in either keeping a judge or recommending removal.  Apparently, the Governor will veto this bill unless that numerical guideline is deleted.  Talmney Drake is the company which is gathering data on the judges by phone and by mail, including interim feedback.  S.B. 54 is the product of efforts by committees headed by Chief Justice Mularkey and Brandon Schaffer’s group.  

D.  Securities Sub-Section. No report.

E.  Appellate Practice Committee. Still no Appellate Practice representative on Litigation Council.

F.  Section Newsletter. Kim Schutt will update the newsletter with information provided by Judge Nottingham.

G.  CLE Update. No report.

5.  LEGISLATIVE AND JUDICIAL TERM LIMITS INITIATIVE UPDATE.  Michael Valdez provided the update.

  • H.B. 1148, the adverse possession bill, requires good faith by the adverse possessor and allows compensation for the value of the property. 

 

  • H.B. 1248, regarding joint tenancy, H.B. 1020, regarding offer of settlement, and S.B. 164, regarding medical malpractice, were reviewed.  H.B. 1193, prohibiting a judge from presiding over a case in which a judge of the same court is a party, was considered over-kill.

6.  REQUEST TO FORM CLASS ACTION SUBSECTION. Paul Karlsgodt and Casie Collignon requested permission to form a subsection of Litigation Council for class actions and mass torts, designating Paul as the chair.  Approximately 25 lawyers are interested in serving on this subcommittee.  They will designate a representative to serve as the liaison on Litigation Council.  Peter Goldstein moved and Brad Breslau seconded the motion to form this subcommittee which passed unanimously.

7.  OLD BUSINESS. 

  • Litigation Section website updates:
    • Greg Martin reported that the website was being developed with the help of Sandra Wick Mulvany to keep it current.  Council members’ work numbers and e-mail addresses will be on the website.

 

  • Jerry Marroney from State Judicial will speak to us at the next meeting (on April 5, 2008) and Chief Justice Mary Mularkey will speak to us in June.  Greg Martin encouraged us to submit e-filing questions for Jerry Marroney.

 
8.  NEW BUSINESS. The Council unanimously authorized of a get well gift for Lorraine Parker and Greg Martin later approved of the Whole Foods gift certificate for $200, which Lorraine has since received.

9.  ADJOURNED at 11:00 A.M.  The next meeting is scheduled for April 5, 2008 at 9AM.

Prepared by:

/s/ Lawrence J. Schoenwald

__________________________
Lawrence J. Schoenwald for Lorraine
Parker, Secretary


Approved: __________________________
                 (date)