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October 2010

CBA LITIGATION COUNCIL
OCTOBER 2, 2010 MEETING MINUTES
LOCATION: CBA offices, Denver

COUNCIL MEMBERS PRESENT:

In Person:

Chair, Peter Black

Vice Chair: Alden Hill

Secretary: Lorraine Parker

Larry Schoenwald

Mickey Smith

Larry Schoenwald

Steve Abrams

Via Phone: Peter Goldstein; Rich Caschette; Kim Schutt

CBA Personnel: Michael Valdez; Dawn McKnight

OTHERS PRESENT: Former Justice Rebecca Love Kourlis; Dan Drayer

1. CALL TO ORDER: 9:05 AM

2. APPROVAL OF MINUTES: The June Meeting Minutes were approved.

3. GUEST: REBECCA LOVE KOURLIS, EXECUTIVE DIRECTOR OF THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM. Justice Kourlis and Dan Drayer showed the Council the “Know Your Judge.com” public service announcement regarding the Judicial Performance Evaluation (JPE), which has been playing on TV and radio with multiple airings in August and is also available at www.CoJudicialPerformance.com and www.OurCourtsColorado.org. It was developed by the Institute in conjunction with the League of Women Voters, the CBA and the Colorado Judicial Institute. Work started on the PSA in May or June of this year. The website links to judicial performance evaluations for judges in each county and jurisdiction, as well as other sites such as the Blue Book, CoCourts, the Institute, CBA, League of Women’s Voters. Polling was done beforehand to learn why people do not vote in the judicial retention elections, and what would it take to get voters to go to the JPE Website. The demographic most interested in doing so was 18-35, young, white, Democrats. In that demographic a significant proportion would trust an impartial commission such as the Judicial Performance Commission. The purpose of the PSA and website is voter education; it was in the works before the “Clear the Bench” effort started, and is not intended as a response to that initiative. Justice Kourlis also described two other projects the Institute is working on. Rule 16.1 – simplified civil procedure, an Executive Summary was distributed. The drawbacks are discussed on the third page and mainly pertain to enforcement of disclosure requirements. Trial rate in civil cases overall is under 3%; under 16.1 the rate reported by judges is 7.9% and 13.6% among attorney respondents. Ultimately the Institute would like for the rule to be mandatory and not such an easy opt-out. Pilot Projects in several states in conjunction with the American College of Trial Lawyers intended to make the litigation process less costly and time-consuming so that cases may be moved forward more quickly and efficiently. In Colorado Skip Netzorg and Ann Frick have been spear-heading the Committee working on the project; many others are on the Committee. The Committee has focused on two types of cases for the Pilot Project, medical malpractice and business litigation. The Pilot Projects are disclosure-heavy, with types of documents that must be disclosed by both sides on a staged basis and limits on discovery such as expert discovery with a presumption against expert depositions. An attempt is being made to streamline the process and front-load it. It will be implemented as a Pilot Project in the four districts around Denver. The Pilot Project may be reported out of Committee in the coming week (October 4th). From there the Pilot Project rules will go to the Supreme Court, where it will be put in place by Chief Justice Directive. The hope is that the Pilot Project will go into effect January 1, 2011. The Pilot Project will be applied to all such cases filed after the effective date, with med mal and business cases to which the Project will apply strictly defined. New Hampshire’s rules are the closest to the Pilot Project. Wyoming is considering a similar proposal. Utah is doing a state-wide rules change. The Colorado Pilot Project will collect data that includes both subjective data through surveys at the back end as well as objective data through collecting docket data (number of motions, time to resolution, number of contested hearings, number of jury trials, and amount of court time) and even a survey of the amount of attorney’s fees. Judge Rich Caschette commented that it will be important to have the appellate courts on board because trial judges will be reluctant to enforce the new rules if they will not have the backing of the appellate courts. The Project will be in place 2-3 years. The Project will contain requirements for early judicial intervention and status conferences and the expectation that judges stay actively involved; motions to be expedited particularly by holding telephone conferences rather than filing briefs. Judges are to give priority to motions that impact the process of the case. Two hypotheses they are operating under: courts should manage cases towards trial, not settlement. Discovery should be finite; there should be anticipated limits on discovery. The default should not be that you get everything you ask for. These concepts have guided the development of the Pilot Project. The problem is too many people cannot afford to access the court system. The Institute’s survey data indicates that if a case is not worth at least $100,000, you will not be able to find a lawyer willing to take the case. Oregon has a process where they neither disclose nor depose experts. Judges and attorneys for both sides love it, because it requires them to use their trial skills, also because it saves a lot of money, and because it requires everyone to focus on the facts rather than an expert’s testifying skills. Plaintiff’s med mal bar was willing to try it, but the defense opposed such a system. New York’s system discloses the expert’s opinions but not the expert’s identity, and does not permit depositions. NY has a higher trial rate. This latter system was acceptable to both sides on the Committee. Alden Hill suggested that the Judicial Performance Commission be kept in the loop on the Pilot Project because judicial handling of cases under the Pilot Project may affect attorney survey results.
Justice Kourlis’s email address is rkourlis@du.edu and Dan’s is Dan.Drayer@du.edu.

4. FINANCIAL REPORT. Reviewed the end of the year numbers and budget. In the past the Council has approved Mock Trial grants, and two separate contributions to Food Banks, also discount coupons for CLE by Litigation Section members (only 19 were used). Motion to approve Mock Trial grants for the coming year in the amount of $12,000 approved unanimously.

5. COMMITTEE AND SUB-COMMITTEE REPORTS:

A. Supreme Court Civil Rules Committee. Peter Goldstein reported on three items: First, the modification to Rules 16 and 47 have been approved by the Supreme Court. Everyone agreed that it was a problem that needed to be resolved. The Rule 16 change pertains to a section in the TMO informing the trial court what the attorneys need for voir dire; Rule 47 requires the Court to make findings to limit voir dire beyond what requested by counsel. Second, there is a perception from the Supreme Court that they are getting a lot of Rule 21 petitions regarding the improper use of Rule 45 subpoenas for medical records without the use of HIPAA releases. The Rules Committee has been asked for input on the issue to change Rule 45. Third, the federal courts have changed all of the deadlines in the federal rules to multiples of seven, therefore the Committee needs to look at what impact that would have on statewide practice. Larry Schoenwald raised the issue that some judges are restricting the exercise of peremptory challenges. Peter suggested that the Council come up with a specific proposal regarding why uniformity is appropriate on this issue because the presumption on the Committee will be that judges should be permitted to run jury selection the way they want to. Judge Tidball admits that a CJI Civ-4th instruction in Section 1 is inconsistent with what she does. Larry Schoenwald, Jon Sands and Lorraine Parker will take the lead on trying to draft a proposal.

B. Board of Governors. No report. Next meeting is November 6, 2010.

C. Securities Sub-Section. No report.

D. Appellate Practice Sub-section. No report.

E. Class Action Sub-Section. Summer CLE on trends in class action was the most well-attended yet. They are working on scheduling a CLE lunch program on employment class actions for the end of October, and are also considering a year-end program on class action litigation.

F. Consumer Law Sub-Section. No report.

G. Section Newsletter. Steve Abrams reported that the newsletter has been going out on a more regular basis.

H. CLE update. Dawn McKnight reported that Brock Wood has resigned; Heidi Ray will be her replacement as the Litigation Section’s CBA-CLE Liaison. Dawn suggested a volunteer from the Council to work with Heidi to come up with a suggested curriculum for the year. She wondered why our section is not listed as a co-sponsor on upcoming CLEs dealing with “Winning Trial Tactics & Skills” and “Appellate Practice Fall Update.” She stated that Heidi will in the future be asking the Council if we want to  cosponsor CLEs which are within the Council’s ambit. Dawn said it is important for one of the Council’s members to participate in this because they need our input.

I. Legislative update. Michael Valdez noted that election season is in full swing. The new year will bring a new governor and a new speaker of the house. Candidates are canvassing for ideas for legislation for the upcoming session. One district court judge is concerned about statute regarding judicial oversight of structured settlements.

6. NEW BUSINESS. None.

7. OLD BUSINESS. None.

8. FUTURE DATES AND SPEAKERS: Michael Valdez has had success with contacting Chief Judges in various districts and will try to get a couple scheduled for the next couple of meetings.

9. ADJOURNED at 11:15 a.m. Next meeting November 13, 2010 at CBA offices, at 9:00 AM.

Prepared by:

/s/ Lorraine Parker

Lorraine Parker, Secretary

Approved: _________________________

(date)