CBA LITIGATION COUNCIL
APRIL 2, 2011 MEETING MINUTES
LOCATION: CBA offices, Denver
COUNCIL MEMBERS PRESENT:
Chair: Peter Black
Vice Chair: Alden Hill
Secretary: Lorraine Parker
Via Phone: Rich Caschette; Peter Goldstein; Sandra Wick Mulvany; Kathie Riley
CBA Personnel: Greg Martin; Michael Valdez
1. CALL TO ORDER: 9:00 AM
2. APPROVAL OF MINUTES: The February Meeting Minutes were approved.
3. GUEST SHERRY STWALLEY, STATE COURT ADMINISTRATORS OFFICE, LEGISLATIVE LIAISON AND DIRECTOR OF PLANNING: Ms. Stwalley distributed a very informative handout which will be incorporated into the next newsletter. State Budge Appropriations The first page provides a breakdown of where State Judicial’s appropriation goes. Only 2.3% of the total state budget comprises the Judicial Branch, which includes Probation.
Judicial budget 2012 Last year the branch took a reduction of 176 positions (out of 3300 total staff). All the cuts came out of trial courts. Probation staff was not cut. This year Judicial requested that 50 staff positions be restored; JBC did not approve. On the other hand, Judicial will not sustain a 1% across-the-board cut. Federal money for drug courts is drying up; JBC is funding 15 of those positions. They are shrinking the senior judge program at the request of the JBC due to high cost. Judicial had 3 judge positions approved in HB 1054 in 2007 which were earmarked for Jeffco, but they have been on hold because Jeffco did not have the space or staff to accommodate them. State Judicial requested, and Jeffco agreed to allow one of the judges to be re-allocated to Montrose, but then the JBC de-funded the Jeffco judgeships. Collections The courts collect $194,414,259 in fees annually. The computer system has greatly assisted judges and clerks to assess the myriad fees associated with various offenses by automatically populating the fees and fines on the judgment forms. The Family Violence Justice Fund took a cut (p. 4) of $393,000. This Fund was established in 1999 to provide funding for legal services for indigent victims of omestic violence. Page 6 shows where that money goes to; 78% goes to Colorado Legal Services.
Legislative Relations – Judicial does fiscal notes on 220 bills, more than any other agency. Are well respected for the accuracy of their notes. Legislative bills of interest to State Judicial include:
a. Electronically transmit court documents to assist with distraints and marriage dissolution cases.
b. Time payment fees for those convicted of misdemeanors and felonies to fund the program (in lieu of interest payments).
c. Substance abuse assessment at Intake
d. Judicial Public Access System – not requested by State Judicial. State Judicial already has a Public Access committee which determines what can be obtained byvendors. The CBA opposes the bill.
e. Promote the use of state electronic forms – there is a concern that the statute will allow the unauthorized practice of law. Michael Valdez passed around a copy of the bill.
Ralph L. Carr Judicial Center – is going well, funding is fine.
Problem Solving Courts – there are over 65, with more added every day. They have been prevent to reduce the number of high risk offenders who habitually return to the judicial system.
Statewide filing trends – felony filings down 21%, which is a nationwide trend and counter to popular belief that crime goes up in the poor economy.
Trial court performance CourTools – management data and performance measures to help court managers track performances. One way they collect data is to send out surveyors for an entire day at a court. 87% of respondents felt they were treated with courtesy and respect; 69% felt their case was handled fairly. Evaluation of magistrates is under way. They track the age of active caseloads; statewide 14.38% of district civil court cases are over time indicated in the standard, 12.68% in urban courts and 16.33% in rural courts. The standard is no more than 10% over time. There is an uptick in the first quarter of 2011 in delay in district civil court cases as filings increase but the courts are still laboring under staffing cuts.
Civil Access Pilot Project Justice Rice is taking input. Her main point is that she is not too busy to hear from people about the project. She will be interviewing people for another two weeks then bring back a recommendation back to the committee in three weeks. There is audio on the Judicial website from the hearing.
4. FINANCIAL REPORT. Last month we paid out $12,000 for mock trial; this month we will pay the food bank and CLE commitments.
5. COMMITTEE AND SUB-COMMITTEE REPORTS:
A. Supreme Court Civil Rules Committee. Peter Goldstein reported that the Committee passed and recommended a change Justice Rice asked for on the subpoena rule. The change is that in a privileged area, for any subpoena issued that might involve privileged material, it HAS to be accompanied by a release or a court order. Otherwise the recipient does not have to comply with the subpoena. This is due to the original proceedings from medical providers who concerned about turning over medical records in response to a subpoena without a court order. A subpoena is never a substitution for discovery.
Secondly, Justice Rice and Skip Netzorg, Natalie Brown and Gil Dickinson presented the Civil Access Pilot Project to the Rules Committee. She asked for the Litigation Section’s position on the proposal to completely eliminate expert depositions in the pilot project.
Discussion: The rationale against any exception to the rule is that the exceptions would become the rule, and there would be motions in every case, probably unopposed. The Pilot Project is essentially a two year experiment – to be effective there should be no exception to the rule so we can see whether the pilot project will actually work to reduce costs. The opposing view is that an expert’s credibility cannot be evaluated merely from an expert’s report, therefore there will be more trials and few settlements. The counter to that is worker’s comp and criminal cases, as well as other states, where there are no expert depositions and the system works fine. The pilot project is currently limited to the Denver metro area district courts. There is some question whether elimination of expert depositions will provide any real reduction in cost. Another consideration is that Judicial does not have its rule-making authority usurped by the Legislature.|
Motion: The Council supports the Pilot Project with no exceptions to the no depositions of specially retained experts rule.
Vote: 7-3 in favor. Motion passes.
Subcommittee re Voir Dire rule: Jon Sands, Larry Schoenwald and Lorraine Parker will get together and come up with proposed language for the Council’s consideration.
B. Board of Governors. No report.
C. Securities Sub-Section. No report.
D. Appellate Practice Sub-section. No report.
E. Class Action Sub-Section. No report.
F. Consumer Law Sub-Section. No report.
G. Section Newsletter. No report.
H. CLE update. No report.
I. Legislative update. Michael Valdez reported that many bills are dying due to the party leadership split in House and Senate. Big issue is the $1B budget deficit. The JBC has not come to agreement on how to close the final $135M gap. Re HB 11-1292, concerning use of forms established by state government, John Gleason has concerns that it could violate the law against unauthorized practice of law. Bill’s proponent is LegalZoom, an online legal forms site.
Motion: Oppose HB 11-1292. Passed unanimously.
6. NEW BUSINESS.
A. Election of Officers in June. Peter Black and Alden Hill re-nominated by acclamation. Lorraine Parker would like for someone else to take over as secretary.
B. Adding members to the Council. Greg Martin will circulate an email requesting submission of additional names for the Council
7. OLD BUSINESS.
A. Speakers for future meetings: Chief Justice Mike Bender May 14th, John Gleason (possibly 9/10 or 10/1); SCAO Jerry Maroney or his assistant, Greg will check on either Chief Judge of the Court of Appeals Janice Davidson or U.S. District Court Chief Judge Wiley Daniel for June 4th.
B. Continued work on state e-filing project. Andy Toft reports that State Judicial is the driving force.
C. State Mock Trial – Peter Black reported that the kids from Glenwood Springs won in the final competition over Lakewood. Competition packed with observers. Money well spent. Greg Martin stated that the Litigation Section’s contribution assists with funding the eight Regional competitions.
8. FUTURE MEETING DATES: May 14 (May 7 BOG meeting), June 4, September 10, October 1, November 5, December 3.
9. ADJOURNED at 11:35 a.m. Next meeting May 14, 2011 at the CBA offices, at 9:00 AM.
/s/ Lorraine Parker
Lorraine Parker, Secretary