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November 2010

CBA LITIGATION COUNCIL
NOVEMBER 13, 2010 MEETING MINUTES
LOCATION: CBA offices, Denver

COUNCIL MEMBERS PRESENT:

In Person:

Chair, Peter Black

Vice Chair: Alden Hill

Secretary: Lorraine Parker

Larry Schoenwald

Brad Breslau

Larry Schoenwald

Andy Toft

Sandra Wick Mulvany

James Gaspich

Kathie Riley

Mickey Smith

Via Phone: Peter Goldstein; Steve Abrams; Jon Sands

CBA Personnel: Greg Martin; Gary Abrams

1. CALL TO ORDER: 9:02 AM

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

3. GUEST: JUDGE DAVID BOTTGER, Chief Judge of 21st District in Grand Junction. Judge Bottger provided a list of “What Not to Ask.” The 21st District’s filings have stayed fairly flat, with slightly lower criminal filings. They are having to deal with an increased number of pro se litigants, particularly in domestic. Judge Bottger hears all civil cases, and has done so for several years. They have gone to mandatory e-filing; a hybrid system was not workable. Cost of e-filing is a concern; Judge Bottger suggested that we address those concerns to Bob Roper at SCAO. Among his pet peeves if the over-use of motions in limine, particularly those which ask the judge to follow the rules of evidence (i.e., to exclude hearsay) and those which are really motions for summary judgment filed in the guise of a motion in limine. The function of a motion in limine is to get a ruling on something which the mere mention of which would cause a mistrial. He also hates to be read to in court – after an exhibit is admitted, don’t ask the witness to read it. He is not seeing much mentoring. A useful mentoring project would be to help young lawyers present their case at trial. His observation is that lawyers talk too much – rather than letting the witness tell the story. Judge Bottger has no special procedure for exercise of peremptory challenges. He allows the exercise of peremptory challenges from the 14 remaining from which to select. He does not see the benefit of allowing the exercise of peremptories only as to the first 6-8 jurors.
Regarding jury selection, he gives the orientation to the entire panel. He has found that allowing attorneys to do mini-opening statements of three minutes works better than him reading a 2:1 instruction. It is more interesting and gives potential jurors a context in which to understand the selection process. After that he puts however many potential jurors he needs in the box. He spends about 20 minutes speaking with this sub-panel, particularly hardship, whether they know the parties, whether they have been involved in a similar situation, if a medical malpractice case may ask how they feel about people suing their doctor, if a PI case he asks how they feel about litigants asking for an award of monetary damages, usually asks if they want to be on the jury. Then he turns it over to the lawyers. Always asks lawyers how long they want for voir dire, they usually ask for 30 to 45 minutes, and he lets lawyers have the length of time they request, and allows leeway where necessary. It doesn’t take him long to figure out if he has good lawyers; if he does, he stays out of the way. He does not use juror questionnaires mainly because the logistical obstacles outweigh any perceived benefit. Rich Caschette said that juror questionnaires are used as a matter of course in Douglas County, and they usually have the questionnaires up to the courtroom by 9:15 or so. The ongoing budget crisis affects how quickly paperwork gets processed. The major effect is in domestic cases. They used to have an attorney who would guide pro se litigants through getting their paperwork completed. Regarding e-filing, except for motions for summary judgment, lawyers should always file a proposed order, preferably one that does not require the judge to fill in the blanks. When filing exhibits, they will be rejected unless you include some type of description with them so that the judge can tell what it is without opening it. He ignores the part of Rule 16 that requires a case to be set for trial within 45 days after it is at issue. Instead at that point he has a status conference via telephone to get some sense of the case. These conferences are not on the record. Judges hate discovery disputes. But he does find it disturbing when there is an objection to every single request in a boiler plate fashion. He encourages the use of Rule 16.1.

4. FINANCIAL REPORT. Reviewed; in good shape.

5. COMMITTEE AND SUB-COMMITTEE REPORTS:

A. Supreme Court Civil Rules Committee. Peter Goldstein reported that a sub-committee of the Civil Rules Committee tracks the federal rules; that sub-committee is preparing to recommend that all time limits will now be in multiples of seven, and the three-day grace period for mailing will be eliminated. The sub-committee seeks the Council’s input. Peter had three suggested changes to Rule 16. The Council will review the proposed deadlines; Peter would like to have proposed changes approved by the Council by the January 8, 2011, meeting. Provide a reason for the proposed change. Larry Schoenwald reported on the work of the Council’s sub-committee (Larry, Lorraine and Jon) in connection with a proposed change to Rule 47 to address the practice of some judges limiting the exercise of peremptory challenges to the first six presumptive jurors. Judge Caschette was asked if he could shed any insight on the practice of some judges; he said it sounds like it incorporates elements of criminal jury selection (for which the rule is different). Jon has now tried four cases under this system. He does not find that it favors either side, but does materially affect the ability of the lawyers to assemble the most impartial jury. Jon cited an example in a recent insurance bad faith case in which they ended up with a juror who had sued Jon’s client before for bad faith, and another juror was an insurance bad faith defense attorney. Neither was excused for cause, obviously. Both lawyers felt punched in the stomach the morning of trial. The Council discussed methods of learning the rationales of Judges Tidball, Stern, Granger and/or Wheeler, and the Council will review the proposed revisions submitted by Lorraine and Larry.

B. Board of Governors. Andy Toft reported on the November 6th meeting. Nothing of major significance to the Council. New amicus brief guidelines were approved; contact Andy for a copy. Lack of mentoring was discussed. The new e-filing system which will be operated by SCAO was a significant concern. Andy is the point-person for getting input from attorneys. The new system will not look anything like the current system. Send all input to Andy. No anticipated dues increase for a couple of years. An issue on the horizon is the Uniform Collaborative Law.
Link:
www.law.upenn.edu/bil/archives/ulc/ucla/2010_final.pdf.

C. Securities Sub-Section. They had a meeting and a CLE earlier this fall.

D. Appellate Practice Sub-section. James Gaspich reported that the  subcommittee will be reviewing requests for pro bono counsel for appeals.

E. Class Action Sub-Section. As of January 1, Paul Karlsgodt will be replaced by Lila Bateman.

F. Consumer Law Sub-Section. No report.

G. Section Newsletter. Steve Abrams expects to have another newsletter out in time for Thanksgiving.

H. CLE update. Gary Abrams reported that there have been discounts for Litigation Section members to attend CLEs. Each year they do curriculum programming; for 2011 they want to do the Litigation Boot Camp series again. They want a series of 9-10 CLEs on basic skills, but change the name. The last time they assumed that new lawyers would be the principle attendees, but they turned out only to be 1/3 of attendees. There will be a strong emphasis to bring in younger attorneys. Are also considering making it more hands-on, participatory rather than lecture focused. The downside is cost and the time that it takes. Gary has spoken with both Pat Fuhrman and John Baker (NITA’s  Executive Director) to find some middle ground to provide NITA-style training at  a lower cost. Another consideration may be doing it two nights a week – with the first night being a lecture and the second night being participatory exercises. That would require a lot of volunteers because the coaching is labor-intensive. They would also like to do some training on “How to Do [a particular case like products liability or medical malpractice]. Gary asks the Council to allocate some of our funds to support this approach.

I. Legislative update. No report.

6. NEW BUSINESS. There was discussion about the results of the Clear the Bench initiative, as well as the results of the Larimer County judicial retention election. Also the selection of Justice Bender as the new Chief Justice.

7. OLD BUSINESS. None.

8. FUTURE DATES AND SPEAKERS: December 4, January 8, February 5, March 5, April 2, May 14 (May 7 BOG meeting).

9. ADJOURNED at 11:45 a.m. Next meeting December 4, 2010 at CBA offices, at 9:00 AM.

Prepared by:

/s/ Lorraine Parker

Lorraine Parker, Secretary

Approved: _________________________

(date)