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December 2010

CBA LITIGATION COUNCIL
DECEMBER 4, 2010 MEETING MINUTES
LOCATION: CBA offices, Denver

COUNCIL MEMBERS PRESENT:

In Person:

Chair, Peter Black

Vice Chair: Alden Hill

Larry Schoenwald (acting Secretary for Lorraine Parker)

Judge Rich Caschette

James Gaspich

Stephen Abrams

Via Phone: Peter Goldstein; Sandra Wick Mulvany; Mike Chapman

CBA Personnel: Greg Martin; Michael Valdez; Dawn McKnight

1. CALL TO ORDER: 9:05 AM and the November meeting minutes were approved.

2. GUEST: JARED PEDERSEN, Manager, Public Access/E-filing Systems, Technology and Court Services Division, Colorado Judicial Department. Jared manages Colorado’s public access system, including the transition into the Integrated Colorado Court’s E-filing System (ICCES) and the development of the new case management system, JPOD, which will replace the present system and is for court personnel only. It is anticipated that money generated from the public access system will pay for ICCES which is being developed in stages and is expected to entirely replace Lexis Nexis by December 31, 2012. The first phase of ICCES is a Small Claims pilot project in Jefferson County to be in place by March 31, 2011, later to include all small claims filings, followed by e-filing coverage for all civil actions, similar to what we have now, and, finally, new areas of ICCES access will be added. The State has subcontracted with two private vendors, CoCourts.com (Acxiom) and BIS, rather than Lexis Nexis, which opted out as a vendor for Public Access. There is a charge for Public Access, received by BIS, at $5 or $6 per search with $2 to $2.50 going back to the State. There are 10 different levels of access, including traffic, criminal, personal injury and business which will be available in all counties. There is also a Metro Volunteer Lawyer site. The Public Defender and sheriffs are frequent users of the public access system which has been very reliable so far and there has been a good response to it. It is expected that this State e-filing system will standardize procedures throughout Colorado. Even though the Colorado system will not replace Lexis Nexis until December 31, 2012, suggestions for improvements from Lexis Nexis would be appreciated. Any concerns or suggestions, including recommendations for sub-committees, should be sent to Jared Pedersen, Jared.Pedersen@judicial.state.co.us, Andy Toft or Reba Nance (Andy and Reba are CBA representatives on the E-filing Oversight Committee). Stephen Abrams’ newsletter will also provide contact information for comments. Pro se filings are encouraged to be done electronically for Small Claims Court and, eventually, for other types of cases, including domestic and civil. Public Access terminals will be in each courthouse with equipment provided by the Judicial Department and the counties will pay for the lines. The goal is for 70-80% of small claims to be filed on-line. If claimants cannot use electronic equipment, court clerks will enter data electronically from written documents. The new Case Management System, JPOD, will also be fully operable by December 31, 2012. There are now 17 employees with the Public Access project and additional support staff will be added in the future. The project timelines, now projected through June, 2013, can be obtained on the website. E-filing fees will be reviewed, but there is no specific plan to reduce them at this time. Colorado is the first state to entirely take over the court e-filing system, although some states have done so in specified regions.

3. FINANCIAL REPORT: Greg Martin: Reviewed, in good shape.

4. COMMITTEE AND SUB-COMMITTEE REPORTS:

A. Supreme Court Civil Rules Committee.

(1) Peter Goldstein requested that the time calculation changes under the rules be reviewed by each of us so that Litigation Council can take an official position at  the January 8, 2011 meeting. Again, comments should be sent to Greg Martin so that any variations from the proposed time calculation changes can be discussed. James Gaspich pointed out that there was inconsistency between the two dates for expert disclosures and discovery cut-off. Peter Goldstein has previously recommended time changes for parts of Rule 16(7), suggesting 42 rather than 49 days and for Rule 16.1(h) from 42 days versus 49 and for 16.1(h)(2) and (3), 63 days versus 56. Peter implored us to independently review these changes so that the Council recommendation will have credibility.

(2) Peremptory challenges were discussed in more detail. A subcommittee of this Council (Larry Schoenwald, Lorraine Parker and Jon Sands) is studying two methods imposed by judges for exercising peremptory challenges in civil cases. The subcommittee is seeking input on whether it would make any difference if peremptory challenges are exercised, through 1) Method One (the traditional, usual procedure) allowing peremptory challenges against any jurors in the box, and requiring each side to exercise 5 peremptory challenges to obtain a jury (e. g., when 17 are passed for cause, allowing for one alternate); or, alternatively, through 2) Method Two (a procedure used by some judges) restricting the exercise of peremptory challenges to designated potential jurors in the box, such as the back row of 7, and replacing any excused jurors by filling any vacated seats with other jurors from the box, outside of the first seven, in the order they were called into the box. [For example, if Plaintiff excuses Juror #1, Juror #8 is moved into Juror #1’s seat. If Defendant excuses Juror #3, Juror #9 moves into Juror #3’s seat. If Plaintiff passes the presumptive panel in the first seven seats rather than exercise a 3rd peremptory challenge, then Plaintiff's 4th peremptory challenge could only be exercised as to a new replacement juror. If no peremptory challenges are made by either side after the potential jurors are passed for cause,  then those jurors in the first seven seats constitute the jury.] Some Issues which we are continuing to address include: 1) whether either method is preferred over the other ( e.g., in terms of diversity, simplicity, fairness and/or uniformity); 2), whether Method Two is precluded by Rule 47, an instruction or on other grounds; and 3) whether any change to Rule 47 should be recommended. Judge Caschette summarized input from Judge Stern, who continues the practice established by Judge Hufnagle, requiring that peremptory challenges in civil cases be exercised through Method Two, which apparently was rooted in the procedure for criminal cases. Judge Stern provides a specific hand-out describing this procedure (attached), which Peter Goldstein pointed out was inconsistent with Civil Jury Instruction 1:2. Peter Goldstein and Larry Schoenwald also do not believe that Method Two is consistent with Rule 47. Judge Stern apparently considers it an advantage for both sides to anticipate the order in which replacement jurors would be utilized when peremptories are exercised on the presumptive panel of seven.  The subcommittee will confer again about these issues and submit an updated report for discussion at the January 8, 2011 meeting.

B. Board of Governors: No report.

C. Securities Sub-section: No report.

D. Appellate Practice Sub-section: James Gaspich was present, but there was no official report. However, there was discussion about the CBA Appellate Pro Bono Program and it was suggested that Jane Ebisch, the chair of that program, be invited as a speaker for the January meeting. There has apparently been considerable interest in this program and an update was desired.

E. Class Action Sub-section: No report.

F. Consumer Law Sub-section: No report.

G. CLE Update by Dawn McKnight (Assistant Executive Director/Publications Director): The feasibility of Saturday and evening programs is being explored. The role of  the CBA in training for the med mal/business pilot project is still being discussed. There seems to be more of a demand for CLE programs on the “basics.” Robert Anderson has completed a form book with an accompanying CD which is now available. A treatise on discovery will be available soon. There was discussion about a possible criminal jury instruction publication, which has never been approved, in spite of years of work. Greg Martin suggested that Michael Valdez call Carol Haller to inquire more about that issue. New civil jury instructions will be out in February, 2011 and the Evidence publication will be updated in 2011 as well.

H. Legislative update: Michael Valdez provided the following list of legislative proposals that are likely to be introduced in the next legislative session that starts on January 12, 2011:

· Uniform Disclaimer Act

· Uniform Estate Tax Apportionment Act

· Uniform Limited Cooperative Association Act

· Uniform UCC Art. 9 (“Secured Transaction”) amendments

· Uniform Military and Overseas Voters Act

· Uniform Collaborative Act

Uniform Collaborative Act: Apparently, Representative Levy is a member of the Colorado Uniform Commission on Collaborative Law and is involved in this proposed legislation. Due to its impact on numerous areas of law, the Council did not want to speculate on its effect and passed a Motion to take no position on this proposal and recommended that a task force be appointed to study it. Apparently, collaborative law  is now utilized in the family law arena and the Council needed more input on its impact. Judge Caschette suggested that Judge Angela Arkin, from  the 18th Judicial District, be invited to present an overview for the Council on this subject. (Note: the CBA is going to be making a comprehensive, section-wide review of the Collaborative Act per information from Michael Valdez on 12/6/10).

13-90-102 – Dead Man’s Statute Proposal: Mike Chapman volunteered to continue an evaluation of this proposal, obtain Lorraine Parker’s input and report at the January meeting.

I. Newsletter update by Stephen Abrams: He will submit a newsletter before Christmas.

5. NEW BUSINESS Michael Valdez reported that the Proposed Civil Access Pilot Project, for medical malpractice and business actions, will be considered at a public hearing on Wednesday, January 19, 2011 at 1:30 p.m. at 101 West Colfax Avenue, Denver, Colorado 80202. The deadline for submitting written comments will be January 14, 2011 at 5 p.m. at the same address 101 West Colfax Avenue, Suite 800, Denver, Colorado, 80202. By December 17, 2010, Council members should send their comments and suggestions to Greg Martin who also intends to post a notice to this effect on our website during the week of December 6, 2010.

6. ADJOURNED at noon. Next meeting January 8, 2011, CBA offices @ 9:00 AM.

Prepared by:

/s/Lawrence J. Schoenwald

Lawrence J. Schoenwald

Approved:____________________

Date