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December 2008

CBA LITIGATION COUNCIL
DECEMBER 6, 2008 MEETING MINUTES
LOCATION: CBA-CLE 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

Jon Sands

John Purvis

Brad Breslau

Mike Chapman

Mark Kraynak

Paul Karlsgodt

Via Phone: Rich Caschette; Peter Goldstein

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

OTHERS PRESENT: Justice Michael Bender, Colorado Supreme Court

1. CALL TO ORDER: 9:03 AM

2. APPROVAL OF MINUTES: The November 8, 2008 Meeting Minutes were approved by unanimous vote after motion.

3. GUEST: JUSTICE MICHAEL BENDER, COLORADO SUPREME COURT. Justice Bender discussed the Judicial Nominating Commission process, with a slide presentation; he also provided copies of the Colorado Judicial Nominating Commission Handbook. Justice Bender explained that one of the principal ways the Nominating Commissions obtains feedback from non-attorneys is by contacting litigants in cases in which the applicant has served as a judge or trial counsel. Fifty percent of the statewide case load deals with domestic issues, including divorce, parental responsibility, dependency and neglect, etc., therefore they are encouraging applicants to understand that domestic will be a large part of their responsibility. Thus a significant number of questions are behavioral-based which reveals how applicants may deal with these emotionally draining cases. The Commission decides who they want to interview; Justice Bender encourages interviewing as many applicants as possible. The civil trial rate is between 1 and 2%, and the criminal trial rate is between 2 and 4%. Ten years ago the rate was 10%. Number of filings and number of trials are two things they look at to determine when a judicial district needs another district court judge. Each Commission has their own rules; Durango and Steamboat release the names of all applicants. There was discussion concerning publicizing open seats on the Judicial Nominating Commissions. All the studies show that it takes at least five years of being a judge to become comfortable. The budget for training new judges has suffered of late.

4. FINANCIAL REPORT. The attached financial report was distributed; everything looks fine.

5. COMMITTEE AND SUB-COMMITTEE REPORTS:

A. Supreme Court Civil Rules Committee. Peter Goldstein – no meetings until January.

B. Board of Governors. Jon Sands: no BOG meeting until May 2009.

C. Securities Sub-Section. Rich Caschette will talk to the sub-section about what has been going on.

D. Appellate Practice Sub-section. Still no representative; have an individual who will attend the January meeting of the sub-section and may be interested in joining the Council.

E. Class Action Sub-Section. Paul Karlsgodt reported on an upcoming seminar on class arbitration.

F. Consumer Law Sub-Section. Mark Kraynak reported that not much has been going on.

G. Section Newsletter. We still need a volunteer to take on the newsletter. Greg Martin suggested broadcasting the opening to the Section. Lorraine Parker and Greg Martin will get a newsletter out for January, and include promotion of our new subsections and the newsletter opening. Mark Kraynak volunteered to assist.

H. CLE update. Brock Wood distributed lists of upcoming seminars. He would like to work with Mark Kraynak and Paul Karlsgodt to put together a program on consumer law, perhaps May 22, 2009. the list of upcoming programs has not changed much since the last meeting. The “Door Law” program on February 5, 2009, will explore issues solo practitioners faced most often that walked through the door, such as dog bites, speeding tickets, restraining orders and minors in possession of alcohol. CLE already does a program called “Hanging your Shingle” which deals with law office management. The Council agreed with offering a discount for Litigation Section members to attend the Door Law Seminar. Send an email to bwood@cobar.org with any ideas or suggestions, or to volunteer to be a speaker.

I. Legislative update. Michael Valdez: January 7, 2009, discussions begin with the legislature. Andy Toft is on the Legislative Policy Committee; Michael encourages the Council to name a separate representative to the LPC. Peter Goldstein has done that in years past. The liaison gets a copy of the agenda and can go through it and see if we care about anything. Alden Hill will fill in if Peter is unavailable. When Michael Valdez sends something out, it is time sensitive and we need to read it and respond quickly. Let Michael know via email if you would like to sign up for his weekly legislative update.

6. NEW BUSINESS

A. Recommendation to State Court Administrators Office on uniform Efiling procedures for district courts. Greg Martin reported that Bill Walters gets comments about e-filing as he travels around the state, including concerns about training, cost, pro se litigants, etc E-filing rules are supposed to be uniform state-wide.
Recently Adams County Chief Judge Vincent Phelps issued a rule for Adams County only regarding linking certain pleadings. John Purvis moved, Jons Sands seconded:
 

Resolution: It is adverse to the public to have non-uniform rules for e-filing in different judicial districts; the Council therefore recommends uniform rules for e-filing across all judicial districts and urges the Supreme Court to adopt such a rule because the lack of uniformity creates a risk to clients and results in inefficiencies and unnecessary expense due to having to file pleadings more than once. The Council unanimously approved the resolution as a general proposition; Greg Martin and Chuck Turner will work on the specific language and circulate it to the Section.

Second motion: The Council requests a uniform rule that technical rejection of a filing or failure to comply with a local rule concerning e-filing shall not result in the filing being deemed untimely. Moved by John Purvis, seconded by Andy Toft. Council unanimously approved the motion.

Third motion: State Judicial should convene a task force to deal with problems judges are encountering with the e-filing system. Moved by John Purvis, seconded by Andy Toft. Council uniformly approved the motion. Rich Caschette observed that it is difficult from his side as a judge to determine what filings relate to each other. Consistency is the Council’s primary concern, as well as cost. Clients ultimately bear the costs of the e-filing system. State Judicial wants to start working in January on public access to court files, then turn to an in-house EFS (electronic filing system). Lexis-Nexis contacted Michael Valdez to solicit his help to stop State Judicial from attempting to create an in-house system. The CBA is not going to get caught in the middle of the dispute. The Council wants to find out whether the local rules out of Adams, Summit and Moffat Counties complied with C.R.C.P. 121, which requires such local rules to be submitted to the Supreme Court and approved prior to going into effect. Greg Martin will check on this. We need to put an alert in the newsletter that these local rules are out there.

7. OLD BUSINESS.

A. Litigation Website updates and creation of an electronic “suggestion box” for Litigation Section members. They hope to have the problems worked out within a month, then to start concentrating on individual section sites. In February or March, Council requests that Greg Martin present the website and the Litigator’s Handbook to the Council during the monthly meeting.

B. Updated Litigator’s Handbook (newly appointed judges and other updates). Greg Martin reported all the new judges are in, and are checking to see which judges who have left the bench who plan to act as senior judges. The process should be completed in a couple of months.

C. Speakers for coming meetings: Carol Haller or Jerry Maroney suggested for follow-up to the Council’s motions and resolution; Greg Martin does not believe there is enough lead time to get them here for January. Chief Judge Larry Naves from Denver was suggested; Andy Toft had planned to ask the Chief Judge from the 18th Judicial District.

D. Review of Trusts and Estates proposal re: Dead Man Statute (attached). Trusts and Estates reps did not want to come on a Saturday, but would like resolution of their issue. Michael Chapman, Alden Hill, Andy Toft and Lorraine Parker will discuss the issue with the Trusts and Estates reps and report at the next meeting why they do not believe the Rules of Evidence are not sufficient and whether we should take a position to repeal the Dead Man’s Statute.

E. Confirm future meeting schedule – Jan 10, Feb 7, March 7, & April 4.

8. ADJOURNED at 11:30 a.m. Next meeting to be January 10, 2009 at CBA

offices, at 9:00 AM.

Prepared by:

/s/ Lorraine Parker

Lorraine Parker, Secretary

Approved: _________________________

(date)