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May 2011

CBA LITIGATION COUNCIL
May 14, 2011 MEETING MINUTES
 

COUNCIL MEMBERS PRESENT:

In Person:

Stephen Abrams, Peter Black, Peter Goldstein, Alden Hill, Sandra Wick Mulvany, Kathy Riley, Larry Schoenwald


CBA Personnel:Michael Valdez; Dawn McKnight

1.  CALL TO ORDER: 9:00 AM

2.  GUESTS: Chief Justice Michael Bender.  Justice Bender has served on the Colorado Supreme Court since January, 1997, when he was appointed to the court by Governor Roy Romer.  Justice Bender explained that being Chief Justice of the Colorado Supreme Court is a little bit like being CEO of a corporation with 3500 employees.  He reported that the recession had had a definite impact on the courts, since salaries had been cut, morale (particularly among court staff) had suffered, and everyone is struggling to do more with less. Justice Bender is trying to meet with judges throughout Colorado in order to get feedback, engage in a dialogue, and boost morale in the courts.  He is a huge proponent of better communication among the judiciary, attorneys, law schools and state administrators. 

Justice Bender expressed his belief that the legal profession was in a state of crisis today.  He lamented the fact that courts are rarely used to resolve civil disputes anymore because the process is both too expensive and too time consuming.  At the same time, the sheer volume of criminal cases saps the courts of resources that might otherwise to devoted to promote the resolution of civil disputes.  In the end, the courts serve too few people.  The system, Chief Justice Bender said, is broken. 

Justice Bender explained that, as lawyers, we come from a storied tradition – one of great, historic significance.  Attorneys have played a vital role in bettering this country.  Lawyers have led the charge in matters of huge import – matters concerning suffrage, integration, and other constitutional issues of enormous social impact.  There is no emphasis on this tradition in law school, Justice Bender explained, and, consequently, most lawyers don’t realize where we come from and most young lawyers (and law school graduates) have no idea what we do. Moreover, a legal education and an understanding of the judicial branch of government should begin well before law school.  We are raising a “lost generation” of students who know little about civics and government, Justice Bender said. 

Judges need to be leaders when and where we can be, he said, and if judges stay away from politics, and stick to principles, they should be able to play a greater role in their communities.  Judges should, in addition, be more active in the Bar Association.

Justice Bender called for better mentoring (perhaps tied to part of our continuing legal education obligations) and more pro bono work to help redress the problems he sees in the legal profession today.  He also thought a program designed to handle the staggering number of pro se Rule 35(c) motions would go a long way to easing the crisis.  While recognizing the importance of these motions, Justice Bender said there was no denying the fact that Rule 35 cases require the courts to divert their resources and energies away from other, equally important matters.  Justice Bender posited that a centralized office designed to review 35(c) motions from across the state and overseen by a senior judge who would screen the cases could go a long way to both increasing the efficiency of the courts and ensuring that legitimate 35(c) cases get the attention they deserve.

The Colorado courts are way ahead of the curve as far as e-filing is concerned, Chief Justice Bender said, and within the next year and a half we should have e-filing in every Colorado court.   Further, the Colorado courts will use Facebook, YouTube and Twitter as a resource to help guide the public (and practitioners) as to how to navigate e-filing. Justice Bender is excited also about the new justice center that is expected to open in February 2013.  The building will include a learning center to educate the public (with an emphasis on educating children) and appellate arguments may be broadcast on public access television.

Chief Justice Bender was pleased also to see the court system show initiative in response to public need.  Justice Bender related how in Adams County, for example, the courts helped train and educate librarians about the availability of family law resources after the courts learned that the public library was frequently the first stop for many individuals who were interested in using the courts for domestic matters.  Justice Bender was especially impressed with resources like the Mental Health Court in Arapahoe County (a court which diverts selected defendants with a mental illness into a specialized, judicially supervised, community based program that provides both case management and mental health treatment), Denver’s juvenile court programs devoted to breaking the cycle of gang violence, and the veterans court in Colorado Springs.  The Veteran Trauma Court in El Paso County is designed to deal with the rise in criminal cases involving war veterans.  Recognizing the special needs of veterans who may suffer from post traumatic stress disorder and other war-related injuries, the program requires participating veterans to undergo treatment and counseling in addition to submitting to regular court appearances and supervision.   Chief Justice Bender believes the veterans court (which, for the time being, is reserved for veterans who have been accused of less serious crimes) fills a critical need in the community.

Finally, Justice Bender offered several tips to practitioners.  He advised counsel to answer the question that is asked of you and offered that bad-mouthing opposing counsel is not effective strategy in his opinion.  Justice Bender explained also that an attorney should want to persuade the panel that ‘This is the right ruling for the State; this will be better for the people of Colorado.’  The most effective advocates are often those who say, convincingly, ‘This is good policy.’

3.  APPROVAL OF MINUTES.  Minutes from April meeting approved.

4.  FINANCIAL REPORT.The Section continues to be in good financial shape.  Nothing else reported.

5. COMMITTEE AND SUB-COMMITTEE REPORTS:

A. Supreme Court Civil Rules Committee. Peter Goldstein noted that Committee concerns regarding voir dire would be vetted.  Discussion followed regarding modifying voir dire or going with the traditional method.  The Committee agreed further discussion was needed before proposing recommended language on Rule 47G  

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.  Stephen Abrams reported there would be a summer newsletter.

H. CLE update. Dawn McKnight discussed the success of the evidence practicum for family law.  She said the full day Saturday program worked well and over 60 people and 10 judges attended.  The attendees are a mixed group, with most having roughly 7 to 12 years experience practicing law.  There was some discussion among the Committee about the advantages of Saturday programs – how they allowed lawyers to get CLE credit without requiring them to be out of the office for a day or two.  The first three trial skills practicum classes had to be rescheduled. 

I. Legislative update. Michael Valdezreported the party split between the House and Senate allowed the House to serve as a backstop for more conservative ideas while the senate served as a backstop for more liberal ideas.  The $18B budget has a $1B deficit.  Education, and K through 12 in particular, are taking the biggest hits.  There was difficulty with the language in SB11-013, regarding “restorative mediation” inasmuch as it was deemed unfair to suggest this mediation was preferable to all other forms of mediation.  The ‘Legal Zoom’ bill, regarding the use of forms was pulled by Bob Gardner.

6. FUTURE SPEAKERS:  Speakers for future meetings: U.S. District Court Chief Judge Wiley Daniel.  Colorado Court of Appeals Chief Judge Janice B. Davidson.

7. FUTURE DATES AND SPEAKERS:No meeting needed for June 4.  Next scheduled meeting will be September 10. 

8. ADJOURNED at 11:40 a.m.

 

Prepared by:

/s/ Stephen Abrams

Stephen Abrams

Approved: _________________________
(date)