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November 2008

CBA LITIGATION COUNCIL
NOVEMBER 8, 2008 MEETING MINUTES
LOCATION: CBA offices, Denver, CO

COUNCIL MEMBERS PRESENT:

In Person:

Chair: Peter Black

Vice Chair: Alden Hill

Secretary: Lorraine Parker

Mickey Smith

Larry Schoenwald

Andy Toft

Kathie Riley

Via Phone: Sandra Wick Mulvaney; Rich Cashcette; Peter Goldstein; Jon Sands

CBA Personnel: Michael Valdez; Greg Martin; Brock Wood, CBA-CLE

OTHERS PRESENT: Chief Judge Roger Klein, 19th Judicial District

1. CALL TO ORDER: 9:08 AM

2. APPROVAL OF MINUTES: The October 4, 2008 Meeting Minutes were approved by unanimous vote after motion.

3. GUEST CHIEF JUDGE KLEIN, 19TH JUDICIAL DISTRICT. Weld County is a single county district, which makes it much easier to manage. Weld is one of the fastest growing counties in the state. Four 20 years Weld had just four district court judges; it now has eight and should get another next year. New positions are cash-funded through increase in fees. Weld has specialized dockets; they rotate very seldom.
There are four felony courts. Many judges do not have a civil law background; were criminal lawyers, which results in a steep learning curve. Appellate judges have commented that they see a number of mistakes by those with a strictly criminal law background. The courtrooms are set up for real time court reporting, and Weld generally has a sufficient number of court reporters to record trials. However, they are not all certified on real time. Now require that exhibits be submitted electronically.
Appellate courts also much prefer electronic records of exhibits. The Chief Justice has announced a hiring freeze for the judicial department, as has the Governor for the Executive Branch. The 19th District has two law clerks, hope to hire a third when their new judge comes on in July 2009. Judge Klein is also the water judge; very document intensive and expert witness intensive.
Judge Klein distributed several handouts, which were much appreciated by the Council. Judge Daniel Maus prepared a handout with suggestions for trial attorneys. One point in particular is that TMOs should not be used to argue the case. Shreck issues should be raised as early as possible rather than waiting after the jury has been selected. Motions for extension of time are scrutinized carefully; especially deadlines for motions for Rule 56 motions. These are routinely denied. Keep briefs short; trial judges do not have the time to read lengthy briefs. Avoid repetition in briefs. Requirement to confer should also be taken literally – actually talk to one another rather than exchange correspondence.
Most of Weld County’s trials are tried by Denver area lawyers rather than local counsel. Very few if any young civil lawyers trying cases. Little opportunity for them to get pro bono experience trying county court cases for pro se litigants because the county courts try very few civil cases. Due to the great increase in pro se cases they have set up mediation programs and use magistrates to explain the process at the county court level.

4. FINANCIAL REPORT. The attached financial report was distributed.

5. COMMITTEE AND SUB-COMMITTEE REPORTS:

A. Supreme Court Rules Committee. No report.

B. Board of Governors. Andy Toft reported on the BOG meeting Nov. 1st. Steve Briggs is chairing the nominating committee for CBA Officers. The BOG broke into groups for strategic planning. One idea was to reduce the isolation of the bench, and to ease the transition, particularly of criminal lawyers who become judges.
The CBA did an economic survey; results have been posted on the website. Includes a lot of information about hourly rates, overhead costs, etc. Andy encourages everyone to take a look at it. A new minority bar association has been formed, the South Asian Bar Association. There was a lot of discussion of positions CBA took on the ballot initiatives. The CBA opposed Amendment 48 because passage of the Amendment would have had a far-ranging impact on Colorado statutes. The CBA supported Amendment 59, primarily because of the need for adequate funding for the judiciary. If it provided long-term TABOR relief, would indirectly help the judiciary. The CBA supported Ref O because it would have made it more difficult to get constitutional amendments on the ballot. The CBA was not proactive in taking positions; we waited until the CBA was approached to take a position. The next time the CBA will look at everything the July before the election in a systematic manner, and circulate to the sections.
The CBA is in good shape financially because has not invested in anything risky despite market turmoil. CBA has a very strict policy on what the CBA’s assets may be invested in; pretty limited to government securities. The CBA Foundation took a hit, however, because half of its money is invested in equities. This may affect grants awarded next year.

C. Securities Sub-Section. No report.

D. Appellate Practice Sub-section. Still no representative.

E. Class Action Sub-Section. Paul Karlsgodt not present.

F. Consumer Law Sub-Section. Mark Kraynak not present.

G. Section Newsletter. Kim Schutt not present.

H. CLE update. Brock Woods distributed handouts of planned events and program ideas. Gary would like to do shorter programs (one to three hours) and programs which can be downloaded. CLE lost a long-time, very valuable staff member, which has increased the workload of the remaining staff. Brock thanked Council members who gave him program ideas, and asked for more suggestions.

I. Legislative update. Michael Valdez distributed handouts on the new leadership and the deadline schedule for the 2009 General Assembly. Judicial will be asking for funding for drug courts and for a pay increase. New judgeships around the state should be immune from hiring freezes because of cash funding. The session starts on January 7th; Michael will request feedback within 10 days on proposed legislation for input to the Legislative Policy Committee. Litigation Council needs to be proactive to take a position with proposed legislation that the LPC should not take a position on because divisive among the Litigation Section membership, for example.

6. OLD BUSINESS.

A. E-filing issues. Greg Martin reported that there are still a lot of concerns around the state. A deal was brokered with LEXIS-NEXIS and State Judicial to do free training around the state at courthouses, but it will not take place until after the first of the year. Jerry Marroney states it costs $3 million dollars to do an in-house system.

B. Litigation Section Tech Support and CBA Website updates. Greg Martin reported that they are more focused on the Litigator’s Handbook. The website changeover is still a work in progress. Attempting to create a template to make each section’s webpage uniform.

7. NEW BUSINESS

A. New attorneys. Greg Martin reported that 728 new attorneys passed the July bar, the most ever; usually 490 to 520 pass. CU has a goal of getting up to 300 first year law students, DU has about 400. A large number of attorneys come in from out of state. The pass rate drastically improved in July 2008 – 85%. Just under 700 of the new attorneys returned cards for free membership in the CBA. Small, rural communities could use some new attorneys.

B. Updated Litigator’s Handbook. Are trying to create a system for judges to log on and update their sections. Send out questionnaires annually. Usually have better response after new judge have been on the bench for six months.

C. Speakers for upcoming meetings. Justice Bender will attend the December 6th meeting to discuss judicial nominations.

D. Review of Trusts and Estates proposal re: Dead Man Statute. Lorraine Parker reported that she had requested comment on the proposal from the officers of the CTLA and the CDLA; no response from either was received. The Council is leaning towards moving the Dead Man Statute from C.R.S. § 13-90-102 to the Probate Code. Michael Valdez will invite a member of the Probate Section to discuss this proposal.

E. Confirm future meeting schedule: December 6th, January 10th, February 7th.

8. ADJOURNED at 11:02 a.m. Next meeting to be November 8, 2008 at CBA offices, at 9:00 AM.

Prepared by:

/s/ Lorraine Parker

Lorraine Parker, Secretary

Approved: _________________________

(date)