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April 2008

CBA LITIGATION COUNCIL
APRIL 5, 2008 MEETING MINUTES


LOCATION:  CBA Offices, Denver, CO 

COUNCIL MEMBERS PRESENT:

In Person:
Chair, Peter Black
Vice-Chair, Alden Hill
Peter Goldstein
Mickey Smith
Jon Sands
Andy Toft
Sandra Wick Mulvany
Kim Schutt
Rich Caschette
Larry Schoenwald

Via Phone: Mike Chapman
   
CBA Personnel: Greg Martin; Michael Valdez; Chuck Turner

OTHERS PRESENT:  Jerry Marroney, State Court Administrator

1. CALL TO ORDER:  9:00 AM and APPROVAL OF MINUTES.  The March 1, 2008 Meeting Minutes were approved. 

2. REPORT FROM JERRY MARRONEY, STATE COURT ADMINISTRATOR: Jerry Marroney was invited to update Litigation Section Council concerning the state of the judiciary from the perspective of the State Court Administrator. Prior to the meeting Greg Martin shared some specific questions with Jerry to help him better prepare his remarks. Numerous questions regarding “e-filing” were submitted by Council members and member of the section at large.
The conversation was wide ranging and covered a number of topics. Here are some of the highlights in bullet format.

E-Filing

Pro Se Parties: Pro se parties are still not required to use the e-filing system.  Judges would prefer that all parties use it, but there cannot be a mandate for pro se litigants to e-file their court documents.

State judicial would like Lexis Nexis to develop a system for pro se parties to use a terminal at each courthouse for e-filing, but this is a wish list for the future.  With the proper facilities, such e-filing could be mandated, except for indigent parties.

Logistical Issues: There are meetings with all states that use Lexis for establishing priority projects for Lexis Nexis users.  Colorado is the only state-run e-filing system that is mandatory in all district courts.  If the e-filing system were run “in-house” by the State of Colorado, not by Lexis, it would probably require an initial outlay of a couple of million dollars and require additional staff; however, there would probably be long-term savings.

Jerry Marroney may be e-mailed to convey questions and problems to three Lexis Nexis representatives, who cover Colorado.

Lexis Nexis costs are controlled by a contract with the Judicial Department and any increases in costs must be approved.

Colorado pays lower fees to Lexis Nexis than other states

Federal e-filing in Colorado is exclusively an in-house system run by the feds, which is less costly to operate and assesses no fees.

Colorado is not set up for the litigants to pay for Lexis Nexis services; fees are paid by the attorneys.

Colorado averages one IT technician for every 100 judges.   The federal courts have one technician per judge.

Greg Martin pointed out that, in the past, there was a Bar committee which worked with the original e-filing requirements.  He recommended that it be reconstituted with representatives from the Bar who would communicate with State Judicial on e-filing issues.  He suggested maintaining a list of 10 such Bar representatives, including practice areas such as collections, probate, water, civil and criminal (criminal uses e-filing in Weld County).  Jerry Marroney indicted that the section could have a representative on State Judicial’s internal e-filing committee.  Andy Toft volunteered to serve since he was on the original bar committee.

Marroney recommends that we eliminate the mandate to file a designation of record for appeals because access to the electronic file would include the whole record (with exceptions addressed below).

Judge Davidson has approved designating the entire electronic record on appeal, avoiding the inadequate designations which apparently occur in 95% of civil cases.   If all documents in a case are e-filed, designating the entire electronic record may be possible at this time.

Electronic records will make transcripts more accessible to public lawyers, such as the Public Defender’s Office.

A list of minimally required software and hardware for e-filing should be published to assist lawyers.

Through West Legal Education Center in Colorado, judges have access to CLE’s from Colorado and from other states.  Judges like to use Westlaw and Westcheck for ease of use.

Practitioners must be careful to recognize documents and items which may not be in the electronic file; such as: jury instructions, certain exhibits, attachments and questions submitted by jurors.  It might be necessary to scan such documents into the system.  The Court of Appeals typically does not want hard exhibits unless specifically requested.

Counties typically own their court buildings, but county commissioners are apparently interested in having the State take them over.  In Colorado Springs, the County has, in effect, closed the courthouse on the last Friday of each month, in spite of a State statute requiring courts to remain open. 

The State no longer pays to maintain law libraries.

Warning:  DON’T rely on e-mail notices for court filings.  Check your Lexis Nexis “IN-BOX.”

Practitioners must check their Lexis Nexis In-Box to verify receipt of any court documents which were e-filed.  Based on some recent experiences, lawyers cannot rely on receiving Lexis Nexis e-mails to notify them of electronic filings.

The “check your in-box” rule is not spelled out in the e-filing rules, and there  should be a formal notice to Colorado practitioners about this.

Lexis Nexis proves that a document has been served from verification through the in-box, not from receipt of an e-mail.  There is an operational log which applies to the in-box and not the e-mailed courtesy notices. 

Marroney thought there were too many variables which could block the receipt by e-mail, such as spam filters, as opposed to the in-box.  (Note: There is also an option to receive the actual document through e-mail as opposed to just the notice of a filing through e-mail)

There are too many contingencies to make e-mail receipt the standard for notice.  Greg Martin will alert the CBA membership to “check your in-box.”

Providing links to previously filed and related documents will soon be mandatory (e.g., link to a motion when filing a response).  The link requirement is now a local rule in the 14th Judicial District. 

It was questioned whether local e-filing rules have to be approved by the Colorado Supreme Court, as required for most local rules and standing orders.  Therefore, practitioners should make special inquiries about any local e-filing rules.

New Judicial Complex (2008 legislation) and Judicial Budget at a Glance:
The proposed Colorado Judicial Center will occupy an entire square block and include the Supreme Court, the Court of Appeals, the Attorney General’s Office, the Public Defender’s Office, the Judicial Department, among other entities.  It is to be constructed on the site now occupied by the Appellate Courts and the Colorado History Museum (which will be moving one block south).   It will probably not be built until approximately 2014.  There will be a 30-year plan for the building and an exit plan.  Adequate bipartisan support is anticipated for legislative approval (since passed).

Additional funding has been approved for:

48 more probation officers
    
28 more clerks for 19 more judges

Additional Public Defender staff and an additional public defender attorney in the 13th Judicial District.

Attorney fees at $65 an hour for ADC (alternate defense counsel) and other court appointments. 

There will be an increase in judges’ pay of approximately $10,000 per year across the board.

Compared to other states, Colorado has a low budget for providing legal services for the indigent. However, the legislature approved an additional $250,000 for legal services for victims of domestic violence (raising the total state contribution to $750,000.)


3.  FINANCIAL REPORT:

Greg Martin presented the financial report for nine months, ending March 31, 2008. 

A motion by Peter Goldstein for the Litigation Council to donate $500, joining the DBA for a food drive, was seconded by Mickey Smith and passed, converting the DBA effort into a statewide food drive.

4.  COMMITTEE AND SUB-COMMITTEE REPORTS: Section newsletter:  Kim Schutt will include various points by Jerry Marroney in her next newsletter.

5.  LEGISLATIVE AND JUDICIAL TERM LIMITS INITIATIVE UPDATE (Michael Valdez):

House Bill 1020 (Offer of Settlement Bill) passed and was signed by the Governor.

Senate Bill 164 (Increase in Medical Negligence Damages) had been passed in the Senate, but had not made it out of the judiciary Committee in the House. (Since killed in Committee)

Contingent Fee Initiative: Former state senator Mark Hillman, along with a small group of Colorado Springs Homebuilders, is working on getting a title for a 2008 statutory ballot initiative. Contingent fee caps would be imposed as follows: 30% of the first $250,000 recovered by the claimant, 20% if the amount recovered is between $250,000 and $500,000, and 10% of the amount recovered that is $500,000 or more. Among other proposed caps, contingent fees on amounts over $500,000 limited to 10%.  This proposal is a redraft of legislation that was introduced and failed in 2003; that legislation was opposed by the CBA. Apparently being re-drafted, but there cannot be a constitutional challenge to it unless it is passed. At this point, the only challenge that can be made is a challenge (violates single subject or is “unfair or misleading”) to the title that is set by the title board. Any substantive constitutional challenge can only be maintained if the measure is adopted by the voters.

6.  CLASS ACTION SUBSECTION: The first minutes were received from the organizational meeting on March 19, 2008 for this new subsection designed as “CBA class actions, derivative suits and mass torts subsection.”

7.  OLD BUSINESS: 

A.  Preemptory challenge issues – C.R.C.P. 47(h) Revision draft suggestions (Peter Goldstein/Jon Sands)-Information expected at the end of April.

B.  E-filing issues (See 2 above).

C.  Litigation Section text support and CBA website updates (Greg Martin). This is being worked on.

D.  Creation of Electronic “Suggestion Box” for Litigation Section Members (Greg Martin) – This is also being worked on.

E.  Speakers for coming meetings – Chief Justice Mullarkey will be presenting the Supreme Court update at the next meeting in June.

8.  NEW BUSINESS: Rockies game will not be a Litigation Council function for this year.

9.  ADJOURNED at 11:10 A.M.   The next meeting is scheduled for June 7, 2008 at 9:00 AM.  

Prepared by:

/s/ Lawrence J. Schoenwald

__________________________
Lawrence J. Schoenwald for Lorraine
Parker, Secretary


Approved: __________________________
                                                 (date)