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November 2011

CBA LITIGATION COUNCIL
NOVEMBER 5, 2011 MEETING MINUTES
LOCATION: CBA offices, Denver

COUNCIL MEMBERS PRESENT:

In Person: Chair: Peter Black, Vice Chair: Alden Hill, Secretary: Lorraine Parker, Larry Schoenwald, Andy Toft, James Gaspich, Sandra Wick Mulvany

Via Phone: Peter Goldstein, Kathie Riley

CBA Personnel: Michael Valdez

 CALL TO ORDER: 9:08 AM

  1. APPROVAL OF MINUTES: Deferred.
     
  2. GUESTS MARC DARLING, TRUST AND ESTATE SECTION, AND HERB TUCKER RE DEAD MAN'S STATUTE:
     2001 effort in legislature to repeal the Dead Man's Statute failed, but the legislature directed the Trust and Estate Section to draft something simpler. A new version was enacted in 2002; but they got feedback re interpretative difficulties. Have been attempting since 2006 to clarify the meaning of "a person in interest" and "corroborated by material evidence." They brought with them to the meeting their proposed changes,hypotheticals, and the only case which has interpreted the revised statute. The Council discussed the issue, and has agreed to take a position in fficient time to permit theT&E Section to present it to the Legislature in 2012 or 2013.

CHIEF JUDGE JANICE B. DAVIDSON:

 
Overall state of the Court of Appeals is pretty good; they are sufficiently staffed with judges. Are combining the Clerk's Offices for the Court of Appeals and the Supreme Court, headed by Chris Ryan. This project was spear-headed by designing the new building. The combined clerk's office in the new building will be in one place on the first floor. Both are on electronic filing. Filings have been pretty level; fluctuate a couple of percentage points month-to-month.Jan-October 2011 total filings is down 3%, civil is up 7%, WC and unemployment is down 24%, criminal is down 1-2%, juvenile is down 13%. Dispositions are up 9%. She is optimistic that the Court of Appeals will be able to handle an increase in filings without the need for additional resources. Average time for resolution of civil cases is about a year. Electronic filing has helped streamline and expedite matters.The new building is ahead of schedule and on budget so far. SCAO, GAL, PublicDefenders, Alternative Defense Counsel and other judicial-related offices will be in the office building. Extra space for expansion in all offices has been included in both the office building and the courthouse, including space for 31 judges on the Court of Appeals (an increase of 9 from the current 22). For mixing up the divisions, Chief Judge Davidson's primary criterion is how long it has been since judges have sat together.New judges are placed in an experienced division. The building is scheduled to open in May or June 2013, and Justice Sotomayor will attend the dedication. They could actually move in a few months earlier (February 2013).

The new building will have a Learning Center, a hands-on experience for 8th grade and up to enhance civics education. The Learning Center will be on the first floor, as will the library. The library will still have books, but will be completely wired. Chief Judge Davidson lastly discussed Martin v. Essrig, a cased decided 8/4/11 re professionalism and civility. An egregious example of poor lawyering. The appeal was dismissed and sanctions assessed against the attorney. More attention is being paid to following the rules on procedures.CAR. 4.2 Interlocutory Appeals in Civil Cases. Two cases which are designed to give some direction:
Adams v. Corr. Corp. of Am., Court of Appeals No. 11CA1505, COURT OF APPEALS OF COLORADO, DIVISION A, 2011 Colo. App. LEXIS 1525, September 15, 2011, Decided, Tomar Oev., Inc. v. Bent Tree, LLC, 2011 Colo. App. LEXIS 1747 (Colo. Ct. App. Oct.27, 2011)  These opinions reiterate the three criteria which must be met. Just because have anissue of law of first impression does not necessarily mean interlocutory appeal will be granted. Most discovery orders are not going to be dispositive, for example; however a discovery order may make a difference of several hundred thousand dollars and is a relevant factor.Suggestions regarding oral argument: reminder that appellate counsel needs to be familiar with the record at trial. Oral argument will not necessarily be granted. Pilot Project in the trial courts: there is a lot of training and CLE going on now for judges, and will be opened up soon to attorneys. Purpose of the pilot project is to measure whether dramatic changes will change efficiencies and cost, and allow access to courts by the average person without means. 15-20% of opinions are published. A party may move to have an opinion published within a short timeframe. She is not sure if a non-party can move for it to be published. Has been done once when a district court requested publication. She is open for calls and emails regarding any problems or concerns.

 4.FINANCIAL REPORT.

 5. COMMITTEE AND SUB-COMMITTEE REPORTS:

A. Supreme Court Civil Rules Committee. Peter Goldstein has no report.
B. Board of Governors. Deferred.
C. Securities SUb-Section. Deferred.
D. Appellate Practice Sub-section. Deferred.
E. Class Action Sub-Section. Deferred.
F. Consumer Law Sub-Section. Deferred.
G. Section Newsletter. Deferred.
H. CLE update. Deferred.
I. Legislative update. Deferred.

6. NEW BUSINESS.

A. New Council Secretary. Deferred.
B. Adding members to the Council. Deferred.
C. Real Estate Privacy Task Force. Deferred.
D. Request to suggest change to C.R.C.P. 5(b)(2)(D)

7. OLD BUSINESS.

A. Speakers for future meetings: William Campbell, Executive Director of the Colorado Commission on Judicial Discipline.
B. Continued work on state e-filing project. Deferred.
C. State Mock Trial - deferred

8. FUTURE MEETING DATES: December 3.

9. ADJOURNED at 11:35 a.m. Next meeting December 3, 2011 at the CBA offices, at 9:00 AM.

 

Prepared by:

lsi Lorraine Parker

Lorraine Parker, Secretary

Approved:

(date)