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May 2009

CBA LITIGATION COUNCIL
MAY 2, 2009 MEETING MINUTES
LOCATION: CBA offices, Denver

COUNCIL MEMBERS PRESENT:

In Person:

Chair: Peter Black

Vice Chair: Alden Hill

Secretary: Lorraine Parker

Hon. Rich Caschette

Brad Breslau

Mickey Smith

Jon Sands

James Gaspich

Brian Hoffman

Katy Donnelley

Andy Toft

Via Phone: Kathie Riley; Paul Karlsgodt

CBA Personnel: Michael Valdez; Greg Martin

OTHERS PRESENT: Chief Judge Ruckriegle, 5th Judicial District; Retired Justice Rebecca Kourlis

1. CALL TO ORDER: 9:05 AM

2. APPROVAL OF MINUTES: The March 7, 2009 Meeting Minutes were approved by unanimous vote after motion.

3. GUEST: CHIEF JUDGE TERRY RUCKRIEGLE. The 5th Judicial District is comprised of Clear Creek, Summit, Lake and Eagle counties; last census reflected a population of 92,000. The district has five district court judges, five county court judges and one magistrate. Have 74 full-time employees, court and probation. All district judges have mixed case loads, civil, criminal, domestic, juvenile, etc. Judges Ruckriegle and Romeo are in Summit county; Ruckriegle does half of civil, half of criminal, all of domestic, some juvenile; in Eagle County, Judges Moorehead and Gannett; in Lake County Judge Grainger.
Judge Ruckriegle’s background is in private practice and the DA’s office; he was appointed to the bench in 1984. Judge Moorehead is the next most senior, appointed in 2002.
Breakdown of cases filed: 41% civil, 27% criminal, 18% domestic, 10% juvenile, and 3% probate. Civil cases have had the greatest percentage growth. Pro bono mediators used for county court; attorneys come in on Fridays and help resolve small claims and other disputes. The district has great need for interpreters, not only Spanish speaking  ut also eastern European and African. After seven years without a single court reporter in the whole district, they now have one for the whole district. If want a court reporter, can request; usually she is assigned a couple of weeks ahead of time. Otherwise, parties can hire their own, and should have one for back-up in the event the sole reporter is unavailable. They now have their own website through State Judicial; try to keep it updated. They have a large increase in pro se domestic cases, but in civil not as big a problem as the metro areas. Due to attrition, will not likely have to do layoffs/furloughs; the 5th is operating at about 91%. From the 5th’s perspective, e-filing is going well. The 5th was the third in the state to go mandatory. Orders issued when a case is filed: delay reduction (service within 60 days, motion for default after 30 days, set CMC within 30 days after at-issue date), e-filing, and order for discovery protocol (including a specific order re Rule 121 duty to confer). Proposed orders must be submitted with any motion, response or objection in order to get those matters resolved more quickly; the order must state in the title what it does. Exhibits are submitted in electronic form. Litigation Council concerns: local orders at variance with Rule 121 and cost. Judge Ruckriegle acknowledges there need to be some basic state-wide rules regarding e-filing, but thinks it is simply a reality due to differences among the districts. Courts generally issue orders at the outset to notify litigants of their specific orders. He will pass on the Council’s concerns; suggests the Council give them a list of our concerns.

Top Pet Peeves:

1. Failure to follow Court Orders

2. Not conferring before filing a motion

3. Failure to submit proposed orders, appropriately titled

4. Delay in jury trials due to failure to anticipate issues in pretrial motions

5. Delay in jury trials due to failure to prepare jury instructions properly

6. Last minute settlements after jury called in for service

7. Combined motions and responses; cannot be properly identified in e-filing system

8. Churning – filing MSJ knowing it will not be granted

9. Don’t use MIL for MSJ

10. Lack of professionalism in pleadings and the courtroom. Don’t attack opposing counsel and parties.

11. Do not interrupt counsel, the witness or the judge

12. Unopposed motions may not necessarily be granted – do not assume

13. Don’t duplicate basic exhibits, try to reach stipulations

14. Trials take too long; 75% of the exhibits should be stipulated to.

GUESTS: RETIRED JUSTICE REBECCA KOURLIS and PAM GAGEL, INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM. Part of the work they are doing is scoring the rules of civil procedure so as to increase efficiency and decrease expense. Trials are getting rarer because of expense and complexity. They have just completed a survey of the American College of Trial Lawyers and are also working with the Standing Committee of the Federal Court Attorneys. They want to explore the possibility of state pilot programs, and would like the Council’s input regarding how the rules are working at present, and what would work better, also any information regarding Rule 16.1. They are moving toward simplification of the rules. They have a survey that they would like for the Council to take, and also send it out to the Section.

Some of the recommendations under discussion:

a. Move closer to a fact pleading requirement, applicable to both plaintiff and defense;

b. Disclosures that work, where documents actually disclosed early in the process;

c. Limited discovery, tailored specifically to claims and defenses either by flat ceiling, or crafted in practice-specific ways, or by court-ordered specific discovery. Default would change from getting everything unless court limits it, to limited discovery unless court grants additional discovery. Dilemma is how to appropriately limit ediscovery so it is proportional to the litigation.

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

5. COMMITTEE AND SUB-COMMITTEE REPORTS: All deferred.

A. Supreme Court Civil Rules Committee.

B. Board of Governors.

C. Securities Sub-Section.

D. Appellate Practice Sub-section.

E. Class Action Sub-Section.

F. Consumer Law Sub-Section.

G. Section Newsletter.

H. CLE update.

I. Legislative update.

6. NEW BUSINESS.

A. Selection of volunteers for newsletter. Deferred

B. Selection of council officers for 2009-2010. Deferred

C. Statewide e-file training. There is a push for e-filing training state-wide, county court, district court and court of appeals. State’s proposal for a public information system and an e-file system is dead for this year in the general assembly.

D. Appointment to Interlocutory Appeal Subcommittee of Appellate Rules Committee – Peter Goldstein appointed.

E. Section Sponsorship of “Trial of a Will Contest” CLE. Brock Woods circulated a program developed by Herb Tucker which he thinks will have broad appeal. Litigation Section agreed to co-sponsor.

F. John Purvis requested permission to raise money for Judge Lewis Babcock’s son – seriously injured. Motion made and approved. John Purvis has decided to retire from the Council.

G. Amicus brief request from the Family Law Section – whether a guardian ad litem can testify as to conversations with the minor without first obtaining a waiver of the attorney-client privilege. Conflict arises between the GAL’s duty to act in the “best interest of the child” vs. the attorney’s GAL ethical duty not to reveal confidential client communication. Council does not oppose the Family Law Section’s request to file an amicus brief, but the Council needs to know what position they intend to take.

7. OLD BUSINESS.

A. Litigation Website updates and creation of an electronic “suggestion box” for Litigation Section members. Deferred

B. Updated Litigator’s Handbook (newly appointed judges and other updates). Greg Martin reported that email about to go out to all district and county court judges and magistrates.

C. Speakers for coming meetings: Chief Justice Mary Mullarkey on June 20th.

D. Review of Trusts and Estates proposal re: Dead Man Statute. Deferred

E. Recommendation to State Court Administrator’s Office on uniform efiling procedures for district courts. members.

F. Confirm future meeting schedule – June 20th and September 12th.

8. ADJOURNED at 11:30 a.m. Next meeting to be June 20, 2009 at CBA offices, at 9:00 AM.

Prepared by:

/s/ Lorraine Parker

Lorraine Parker, Secretary

Approved: _________________________

(date)