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June 2008

CBA LITIGATION COUNCIL
JUNE 7, 2008 MEETING MINUTES
LOCATION: CBA Offices, Denver, CO

COUNCIL MEMBERS PRESENT:

In Person:

Chair, Peter Black

Vice-Chair, Alden Hill

Peter Goldstein

Andy Toft

Doren Matzke

Paul Karlsgodt

Brad Breslau

John Purvis

Kathie Riley

Sandra Wick Mulvany

Jon Sands

Bryan Sullivan

Mark Kraynak

Larry Schoenwald

CBA Personnel: Michael Valdez

OTHERS PRESENT: Chief Justice Mullarkey

1. CALL TO ORDER: 9:00 AM and APPROVAL OF MINUTES. The April 5, 2008 Meeting Minutes were approved.

2. REPORT FROM CHIEF JUSTICE MARY MULLARKEY, COLORADO SUPREME COURT:

• She was proud to be present at a bill signing ceremony for legislation approving the planning and construction for the new Justice Center to be named after Governor Ralph Carr and planned for 2014. Its occupants will include the Colorado Supreme Court, Court of Appeals, Attorney General’s Office, all State Judicial administrative functions and the Public Defender appellate and administrative offices. To clear the way for it, the Natural History Museum will be torn down and relocated one block south from its present site.

• The planning should cover the next 30 years, but it is hoped that the buildings will last 100 years.

• The present Appellate Court building was obsolete the day it opened in 1976.

• The State has not had a new office building for over 30 years.

• The Justice Center will be funded by an increase in filing fees.

• She was pleased with the budget increases, including pay increases for judges which were referenced in the 4/5/08 Minutes.

• Forty-three new judges will be added over a three-year period, with 19 being sworn in on July 1, 2008.

• There will be further openings on the Court of Appeals with the retirement of Judges Rothenberg and Vogt, both effective January 13, 2009. State District Court Judge Harlan Bockman has also announced his retirement from the 17th Judicial District.

• Judicial performance evaluations will remain in effect and there will be follow-up on the surveys to increase the responses.

• Council members expressed criticism of the system in the following areas:

1. Over-emphasis on docket control by judges .

2. More emphasis on speed than justice with 15-20 minute voir dires (even with multiple parties on one side);

3. Resistance to continuing cases even when jointly stipulated to and with good cause (e.g., plaintiff a minor, too young to determine extent of injuries);

4. Double and triple settings;

5. Setting trial dates before expert disclosures should be due;

6. Some judges are uninformed when it comes to expert witness fees, lacking prior practice experience in this area.

• The staffing levels in the judicial system have improved, including an increase in court reporters. However, some county courthouses do not have enough space for staff. The Colorado Springs courthouse is still closing on the last Friday of each month.

• Training should emphasize that justice is a greater priority than speed.

• The judicial mentoring program should also address the justice vs. speed issue.

• The quality of the arguments in the Supreme Court are generally good.

• It usually takes three-eight months for a decision following oral argument.

• The Court of Appeals is still overworked, but will benefit from the new panel of judges which will be sworn in. They have each been doing 90-100 opinions per year.

• Electronic filing will be implemented in the Court of Appeals.

Electronic filing will not be implemented in the foreseeable future in the Supreme Court.

• She recommended that “Realistic Discovery Suggestions” be a topic for a future discussion.

3. FINANCIAL REPORT: The current financial status was attached to the Minutes for the 11 months ending May 31, 2008.

4. COMMITTEE AND SUB-COMMITTEE REPORTS:

A. Supreme Court Rules Committee – no report

B. Board of Governors - Andy Toft reported on John Gleason’s suggestions for disclosure to clients and the public, including:

1) mandatory disclosure to clients of whether lawyers have malpractice insurance;

2) increased dissemination to the public of actions by the Office of Attorney Regulation, including notice of filing a complaint (an extreme position was to issue a press release).

A hearing will be held September 9 at 1:30 PM at the Supreme Court on this subject. The Board is considering a proposal to allow special exceptions for retired lawyers to do pro bono work. Andy is now on the Legislative Policy Committee.

C. CBA Task Force on Judicial Performance - Michael Valdez reported that, even though magistrates will not formally be included in evaluations and surveys, the Chief Justice has agreed to increase the evaluation of magistrates, even though not required by legislation, to be done through an informal agreement with the Chief Judges.

D. Securities Subsection – no report.

E. Appellate Practice Subsection – Still looking for a member with that practice emphasis.

F. Class Action Subsection – Paul Karlsgodt reported that this subsection will have a CLE luncheon on 6/25/08 from noon-1:30PM at the CBA offices, 9th Floor. Their newsletter will be published quarterly and the website is up. Anyone interested in joining the subsection should contact Paul or Melissa Nicoletti.

G. Section Newsletter – no report.

H. CLE Update – no report.

5. LEGISLATIVE, JUDICIAL TERM LIMITS AND ATTORNEY FEES INITIATIVE UPDATE: Michael Valdez reported that the initiative proposing judicial term limits was withdrawn. Also, the attorneys fees initiative, primarily limiting contingent fees, was withdrawn as a result of CTLA opposition with several counter initiatives, which were also withdrawn. There will be a legislative update published in the July issue of the Colorado Lawyer.

6. OLD BUSINESS:

A. Preemptory challenge practice issues: Peter Goldstein reported that proposed changes to C.R.C.P. 47(h) regarding preemptory challenges were voted down by the Supreme Court Civil Rules Committee and, therefore, how preemptory challenges will be implemented is left to judicial discretion.

B. E-filing issues: Michael Valdez reported that the local rule requiring hyper-link filing was withdrawn.

C. Michael Valdez reported that work is continuing for tech support of the CBA website updates and the Litigation Section, along with the creation of an electronic “suggestion box” for Litigation Section members.

D. Public Service-food bank: Michael Valdez reported that a $500 contribution to this cause was made in behalf of the Litigation Council.

7. NEW BUSINESS:

A. Election of officers for 2008/09: Larry Schoenwald moved that Peter Black remain as Chair, Alden Hill remain as Vice-Chair and Lorraine Parker remain as Secretary, which was passed by acclamation.

B. CBA planning meeting: Larry Schoenwald attended this meeting, at the request of Peter Black, and reported that incoming president Bill Walters chaired the meeting, in which various issues were raised, including:

1) Civility among lawyers

2) Professionalism: vignettes were complimented and efforts will be made to further disseminate them. In Georgia, professionalism training is mandatory.

3) How to enhance public confidence in the legal system: This is one of the goals of CBA and volunteering for community projects was one of the suggestions, as well as recognizing and publicizing existing or recent good deeds and efforts by the Bar.

4) Involving young lawyers in volunteer efforts and including them in specialty practice groups: Larry Schoenwald suggested that a representative of the CBA Young Lawyers Committee either be appointed to the Litigation Council or report to the Litigation Council on a regular basis. Peter Black agreed to call Leia Ursery, the incoming Chair of the Young Lawyers Committee, to discuss such participation.

C. Consumer Law Subsection: Mark Kraynak suggested that he form a subsection of the Litigation Section, Larry Schoenwald moved for same, and it was unanimously passed. The Consumer Law Subsection will deal with issues such as consumer remedies, protection from ID theft (Colorado is 7th in the nation) and other types of cases that need to be litigated in behalf of consumers.

8. ADJOURNED at 10:55 A.M. The next meeting is scheduled for August 2, 2008 at 9:00 AM. There will be no meeting in July.

Prepared by:

/s/ Lawrence J. Schoenwald

__________________________

Lawrence J. Schoenwald for Lorraine

Parker, Secretary

Approved: __________________________

(date)