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December 2009

CBA LITIGATION COUNCIL
December 5, 2009 MEETING MINUTES
LOCATION: CBA offices, Denver, CO

COUNCIL MEMBERS PRESENT:

In Person:

Chair: Peter Black

Vice Chair: Alden HIll

Peter Goldstein

Larry Schoenwald

Andy Toft

Sandra Wick Mulvany

Stephen Abrams

Mickey Smith

John Sands

Brad Breslau

Mike Chapman (acting secretary for Lorraine Parker)

Via Telephone: Kathy Riley

OTHERS PRESENT: Greg Martin (CBA); Michael Valdez (CBA)

GUEST: The Honorable Judge Janice B. Davidson, Chief Judge of the Colorado Court of Appeals

1. CALL TO ORDER: 9:00 AM

APPROVAL OF MINUTES: The September 12 and 16, 2009 Meeting Minutes were approved by unanimous vote.

2. FINANCIAL REPORT. Greg Martin presented the attached financial report. There was a general discussion of the proposed budget and past expenses, and specific discussion about a budget item of a past donation to the Food Bank that had not been paid and the fact that $12,000 has been budgeted to assist the Mock Trial Program in 2010.

MOTION: Motion made to make an immediate donation of $1250 to the referenced Food Bank, with a follow-up donation to the same Food Bank in the amount of $2,500 in January 2010. Motion was seconded and passed by unanimous vote.

3. Committee and sub-committee reports

a. Supreme Court Civil Rules Committee (Peter Goldstein) Peter reported that the Rules Committee will be meeting December 9, 2009. The following items are on the Rules Committee Agenda:

1) Proposed rule changes regarding voir dire ;

2) Request for support in amending Judicial Code Rule 2.6 and comment 2 to the Rule; and,

3) Proposed new rule CAR 4.2 (Interlocutory Appeals in Civil Cases). There was substantial discussion addressing the proposed CAR 4.2, but further discussion delayed until after meeting with our guest, Chief Judge Davidson.

b. Board of Governors (Andy Toft) Reported on the meeting held November 7, 2009. Andy reported that at the November 7, 2009 meeting that an Immigration Committee has been established for the CBA and that other committees were declared no longer active. Andy reported that membership in the CBA increased in 2009 over the previous years, but collection of dues is a little behind. The CBA also established an Economic Task Force.

4. GUEST: Judge Janice B. Davidson, Chief Judge of the Colorado Court of Appeals Chief Judge Davidson was a guest. Prior to our meeting, she had asked us for a list of questions and much of her comments focused on those questions. The list of questions were distributed at the meeting, and below is a short summary of her comments/responses:

? There should be no delay in receiving rulings from the CA based upon whether a motion if filed in paper form or electronically. She would be happy to track down a specific a case and investigate why a ruling was made at a specific time if provided a specific case number.

? In response to the question whether there is anything a practitioner can do to speed things up with respect to electronically filed motions, her general comment is that practitioners need to read and comply with the existing rules (i.e., number of copies), anticipate the need to file for extensions of time, don’t alter the record in any manner and link pleadings to lower case as required. If you are filing an emergency motion – say its an emergency in the title of the motion.

? The CA staff attorneys provided Judge Davidson with some pet peeves/suggestions to practitioners, which are

o Skip details and set forth only relevant facts

o File pleadings early

o Don’t attach uncertified documents

o Write concisely and explain the relief being sought

o If an opposing party files a brief a few days late, do not file a motion to strike the brief.

? While the trial court has wide discretion, there are parameters (“scope” and whether the decision was “arbitrary and capricious” – like a “reasonable judge” standard)

? Following are some of the comments to practitioners from the CA Law Clerks:

o Write concise briefs

o Don’t repeat anything

o If there is a procedural issue, be sure to include it

o Be specific in the table of contents of your brief and include a legal summary

o Identify and cite the record correctly

o Comply with CAR 28(k), and make the standard of review concise

o Make sure legal authorities are both relevant and correct

o Do not repeat facts in your Reply brief

o Use the required 14 point font size

o Stay within the required word count

o Return the Record promptly

o Avoid derogatory comments about the opposing counsel/party

? Top Ten list of what the CA Judges want lawyers to do, or change, to improve the process:

1. If you are raising a novel issue, be sure the issue is clearly framed. Also, research the issue in a thorough manner. (Judges do not rely on the cases that are cited, but they feel that novel issues in particular are under researched)

2. Don’t appeal issues that are hopeless or will not change the result of the case.

3. Make sure the record is accurate and pinpoint cites

4. Write clearly and succinctly – no irrelevant facts or details

5. Never raise 10 or more issues – pick your issues.

6. Keep to the word limits.

7. Don’t say how dumb the trial court was or opposing counsel is.

8. Keep humor out of the briefs.

9. Read the CAR and follow them.

10. Acknowledge adverse facts and law.

? With respect to Oral Arguments, the Judges made the following suggestions:

1. If there is more than one attorney planning on speaking on one side, do not divide time between the two.

2. Know the record.

3. Know the key cases at issue

4. Get to the issues quickly and use the facts of your case.

5. Answer the question that is asked by the CA judge.

? With respect to budget concerns, the CA is currently in good shape, based in large part on the “vacancy savings” approach that was adopted some time ago. However, the economic forecast is not good and the CA is cognizant of the forecast.

? There is not a backlog of cases and the number of filings is up a little over last year. Currently the CA is getting more rulings out than are coming in.

? 30% of the CA cases have oral argument, and the oral argument helps the judges to focus on a weak point of an argument.

? Cases are assigned in a “basically random” manner. The presumed judge author will have his/her clerk write a “predisposition memo” which memo is circulated to the panel for discussion before oral argument, if any.

? Judge Davidson made clear her desire to have new CAR 4.2 adopted and a statutory change enacted in order to provide the court jurisdiction. She explained the genesis of the draft rule (a complex commercial case with large damage amounts in dispute in which attorney Dan Hoffman was involved) and the manner in which the proposed rule was bought to the attention of the Rules Committee. She does not think that CA will exercise its discretion to hear many interlocutory appeals in a civil cases and that the rule was carefully crafted so that the CA will use it in limited and narrow circumstances.

5. NEW BUSINESS: Mike Valdez explained that the CBA Executive Council is looking to the Litigation Council for a recommendation whether the CBA should support and take the lead on presenting new legislation that will provide the CA the jurisdiction it needs to hear interlocutory appeals in civil cases. There was substantial discussion on this issue, with numerous questions and concerns raised and discussed. Some of the issues/concerned identified were:

A. Would the availability of this new rule establish a new layer of standard of care for civil practitioners?

B. How much might the new rule be used?

C. What type of cases would the rule likely apply to? Judge Davidson believed that the rule would apply to a very limited number of very large business disputes in which interlocutory resolution of a controlling question of law would save substantial sums of money for the parties and the courts.

D. How will the Rule’s use be restricted to the “very limited number of cases” that the rules’ supporters argue that it will be restricted to? After much discussion, the following motion was made:

MOTION: Further discussion on whether this Council will recommend to the CBA Executive Council that the CBA support or take the lead on presenting new legislation that will provide the CA jurisdiction to hear interlocutory appeals in civil cases should be tabled to allow all council members more time to consider the request, and this issue/request will be taken up and addressed further at the January 9, 2010 Council meeting. The motion was seconded and passed by unanimous vote. NOTE: Peter Goldstein abstained. Everyone was asked to check with other lawyers we work with to try to gain some insight as to the perceived need for and/or potential problems with this proposed rule.

6. ADJOURNED. 11:30 a.m. -- Next Meeting – January 9, 2010 at the CBA offices, 9:00 AM.

Prepared by:

/s/ Michael Chapman

for Lorraine Parker, Secretary

Approved: _______________________[January 9, 2009]

E:\WP\CBA\Minutes\CBA LITIGATION COUNCIL Meeting Minutes December 5, 2009.doc