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Dec. 2012

December 2012
From the Colorado Bar Association
Litigation Law Section
In this issue...
Council Notes

CBA President Mark Fogg Speaks to the Litigation Section Council

In early November, Mark Fogg stopped by to share his impressions and experiences as CBA President with the Litigation Section Council. Mark explained that over the past year he has visited each of the local bar associations to find out firsthand what concerns and interests members across the state. Working with various CBA members, Mark hoped to come up with a number of concrete goals to help benefit Colorado lawyers. Regardless of whether he was meeting with a large municipal bar association or a smaller rural association, Mark heard the same concerns again and again: practicing attorneys want to address problems relating to (i) the public’s access to justice; (ii) their fellow lawyers’ professionalism; and (iii) the public’s perception of lawyers.

Every member of society is entitled to some form of competent legal representation, Mark said. He discovered there are a number of legal services available at the local level, but many of these have been decimated by huge budget cuts. Each local bar association requires about $85,000 per year to keep its doors open and everyone is working hard to find different ways to fund Colorado Legal Service and pro bono programs. In connection with his duties as CBA President, Mark reaches out to the local associations to find out what they need to keep going. In the process, he’s discovered that a number of individuals have come up with their own creative ideas, with some lawyers capping fees, or others working at reduced rates to provide services for people who might otherwise be unable to afford their representation. This kind of assistance benefits the entire legal system. Mark explained that there has been a 65 percent increase in pro se domestic relations cases in the last five years. Unfortunately, pro se litigants do not necessarily know or understand the legal system. Judges tend to be deferential to pro se litigants, but judges cannot, of course, litigate on the pro se client’s behalf. As a result, many pro se domestic relations cases get tossed out of court because litigants do not know what they’re doing. We are heading more and more to a lawyerless courthouse, Mark said, because 75 percent of the population cannot afford an attorney. This is our collective fault, he continued, because we’ve failed to implement solutions that allow people access to justice. Very simply, we are not serving the lower and middle classes. Click here for more on Mark Fogg’s visit.

In addition to guest speaker Mark Fogg, Greg Martin provided the Council with a summary of the 2013 proposed budget,and the Council discussed sending a monthly newsletter instead of the quarterly. Click here to read the November Council meeting minutes.

Sherry Stwalley Provides State Judicial Updates

On Dec. 1, Sherry Stwalley, the Colorado Judicial Branch Director of Planning and Analysis and Legislative Liaison, stopped by to provide the Litigation Council an update about the Colorado judiciary. The big news, as most everyone knows, is that the Colorado Supreme Court and the Colorado Court of Appeals are going to have a new home in just a matter of days. At noon on Friday, Dec. 14, the Colorado Supreme Court and Court of Appeals are going to shut down and spend the next four days moving into the new Ralph Carr Judicial Center. In fact, both courts will be closed for business on December 15 and 16, reopening Wednesday, December 17. More information on the move is included in this newsletter. The move is eagerly anticipated, Sherry reports, and the new Judicial Center will consist of approximately 200,000 square feet of court space, almost 500,000 square feet of office space, a learning center, and other amenities. The building is designed for a 100 year lifespan.

The Center’s “official” opening won’t take place until May 2013 and will be attended by United States Supreme Court Justice Sonia Sotomayor.

In an overview relative to court filings, Sherry reported there are currently about 750,000 cases in the State system. Perhaps surprisingly, the number of filings has actually dropped during the last three or four years. Many of the cases are traffic cases, with approximately 15,000 traffic cases in 1972 jumping to roughly 121,000 cases today. Still, the state courts have seen a recent decrease in these cases as well, with more and more municipalities retaining traffic cases, presumably since the fees generated via fines and tickets prove to be a reliable source of revenue. Foreclosures have increased dramatically over the years, with about 3,600 in 1972, 12,200 in the 1980s and approximately 28,000 cases today. In 1972 there were about 22,000 divorce cases in State court while today there are roughly 28,000 cases. So the number of divorce case filings is more or less the same today as it was in 1972, notwithstanding the huge population increase over the course of the last four decades. Similarly, and in spite of the huge population increase, there has been only a modest increase in personal injury case filings: 3,283 in 1972, with 4,356 today. In another perhaps surprising statistic, felony criminal filings have been falling over the last five years, although no one really knows how to account for this.

Regarding Judicial branch budget issues, Sherry explained staff salary increases are a top priority. Judicial branch staff has not had a salary increase in five years and a number of people are struggling. In fact, some court offices have opened food banks for their employees. The Governor’s Office is asking for a 1.5% cost of living raise and an additional 1.5% pay-for-performance increase. If it goes through, judges will get likely receive an approximate 3% pay increase. Sherry posited that salaries for Colorado State judges are about 33rd in the nation, while Colorado state employees overall are about 12th in the nation. Sherry noted also that State Judicial is working with Access to Justice and seeking additional self-represented litigant coordinators. In 70% of domestic cases, Sherry explained, there is no attorney on either side. While the clerks’ office employees are concerned with unauthorized practice of law issues, there is a movement to perhaps relax certain standards in order to allow clerks and self-help centers to at least, e.g., direct litigants to file appropriate forms and otherwise make the process more efficient.

Finally, Sherry reported that the State’s fairness initiative appears to be proceeding well. This is part of a national movement, one designed to treat litigants and others better when they enter the judicial system. The fairness initiative is designed to ensure that litigants have their day in court—win or lose”and is concerned with making certain litigants’ voices are heard. Along those lines, 70% of people polled recently in a state-wide survey reported feeling they were treated fairly when they appeared in court.

We thank Sherry Stwalley for making us aware of developments in the Colorado Judicial Branch.

Click here to read the meeting notes from the December Council meeting.

Section Updates

Open Seats on the Litigation Section Council

Want to be more involved in the Litigation Section? The Litigation Section Council has 17 members, however, Section bylaws permits as many as 25. The Section Council is searching for new members—some new blood, if you will—to join the Council. Learn how you can join the Council.

Putting Our Money Where Our Mouth Is

In an effort to both defray costs of valuable Bar programs and to otherwise contribute to the community, the Litigation Section has made a number of donations recently including (i) more than $3,000 to support the appellate pro bono program (the Litigation Section is, as far as we’re aware, the only Section helping to defray these costs); (ii) a $12,000 grant for the mock trial program; (iii) a $5,000 to the Food Bank of the Rockies; and (iv) $5,000 for Colorado Legal Services.

From the Courts

Colorado Supreme Court, Court of Appeals, Supreme Court Library, and Office of the State Court Administrator Set to Move
Courts and library will open in new location Dec. 19

The Colorado Supreme Court, Court of Appeals, Supreme Court Library, and Office of the State Court Administrator will move from the Denver Newspaper Agency Building to the new Ralph L. Carr Colorado Judicial Center on Dec. 15 and 16. The courts will close at noon Friday, Dec. 14, and will reopen in the Judicial Center (2 East 14th Avenue) at 8 a.m., Wednesday, Dec. 19. Any deadlines for filings in either the Supreme Court or Court of Appeals on Dec. 17 and 18 are automatically extended to Dec. 19. The library is closed to the public on Nov. 23 and will reopen on Dec. 19. The Office of the State Court Administrator will close on Friday, Dec. 14, and will reopen in the Judicial Office Tower (1300 Broadway) on Monday, Dec. 17. Read more here.

Colorado State Judicial ICCES E-filing Update

Colorado’s new e-filing program—the Integrated Colorado Courts E-Filing System (ICCES)—is now available on a pilot basis for Colorado Small Claims Courts. Pro se litigants can e-file small claims cases in Adams and Jefferson County through the web-based program.

The Colorado Judicial Branch hopes to expand ICCES service to county court, district court, court of appeals, and Supreme Court cases early next year. For more information about ICCES, please see the Colorado Judicial Branch website.

In the News

New Report Is a Manual for Implementing Short, Summary, and Expedited Civil Action Programs

Recognizing that there is widespread concern that the civil justice system is too complex, costs too much, and takes too long, a new report provides recommendations for designing short, summary, and expedited (SSE) programs and calls for implementation of such programs on a national scale. The report, A Return to Trials: Implementing Effective Short, Summary, and Expedited Civil Action Programs, is co-authored by IAALS, the Institute for the Advancement of the American Legal System; the American Board of Trial Advocates (ABOTA); and the National Center for State Courts (NCSC).

A Return to Trials builds on the work of the NCSC, which recently detailed existing SSE programs around the country, and goes further by making recommendations for implementing, conducting, and measuring effective programs. Click here to read more.

Empirical Findings Inform Different Approaches to Discovery Reform

One of the principal goals of the Colorado Civil Access Pilot Project (CAPP) is to streamline the discovery process and thereby reduce the cost of litigation. Ultimately, CAPP’s success in reducing total litigation costs depends on how big of a problem the discovery process actually is. Suffice it to say, there is not agreement on this point, as best illustrated by the differing empirical findings of the Federal Judicial Center and the Institute for the Advancement of the American Legal System. Click here to read more.

The Next Generation of Cross-Examination: Constructive Cross-Examination

For generations, the cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case. Under the newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically, according to Roger Dodd, a national expert on cross-examination techniques.

Constructive cross-examination is a quantum shift from the historical outlook on the central purpose of cross-examination. It is not a technique, rather it is a new perspective on the ability to use cross-examination at trial to teach the cross-examiner’s theory of the case. Click here to read more.

Upcoming CBA-CLE Programs

Unless otherwise noted, all programs are located at the CBA-CLE offices, 1900 Grant St, Ste. 300, Denver, CO 80203.
Call 303-860-0608 or 800-860-2531 with questions.

Become a More Effective Negotiator—Wednesday, Dec. 12

Featuring National Presenter Ralph Cagle, learn negotiation strategies and tactics; how to assess your own negotiation style and skills; develop skills through hands-on negotiation; and reality test ethical challenges lawyers face in negotiation. Seven general CLE credits, including 1.2 ethics, are available for this program. Litigation Section Members also receive a discount. Learn more and register.

The Smoking Gun, the Compromised Computer, and Other Ethics Issues Involved in Procuring Evidence—Friday, Dec. 28

From noon to 1 p.m., program highlights include handling the smoking gun, dealing with the client’s computer; preserving evidence versus limiting access to evidence; interviewing witnesses; and wsing subpoenas. Litigation section members receive a discount. One general CLE credit, including on ethics is available. Learn more!

National CLE Conference—CLE & Ski: Civil Litigation Track—Jan. 2–5
At the world-class Westin Snowmass Resort

Now in its 30th year, this CLE & Ski Conference features: top-notch speakers—among the best lawyers in the country; cutting edge topics; 12–16 CLE credits, plus ethics credits, accredited in all MCLE states; opportunities for open discussions; networking with fellow attorneys; outstanding resort location; early morning and late afternoon CLE schedule; and special lodging and lift-ticket discounts. See the complete agenda for the Civil Litigation Track.

CLE Homestudies

If you can’t attend a live program or webcast, order a homestudy from a recent CBA-CLE Program and watch from the comfort of your home or office!

Winning Trial Tactics of 2012—(Original program date November 2012)

2012 Ethics Revue: Starring the Law Club!—(Original program date November 2012)
The always entertaining and educational CLE program offers three ethics credits.

Ethics 7.0—(Original program date November 2012)

Video Replay—Advanced Constructive Cross-Examination, Featuring Larry Pozner and Roger Dodd!
Review the upcoming schedule of video replay dates, including Thursday, Dec. 20

This is your chance to watch the —Masters of Cross-Examination” present in a video-replay format. The reviews for the program were outstanding, including these comments from attendees: “The Program was practical, well-presented and humorous” and “Wonderful program that I will immediately put to use!”


Stay up-to-date with the Litigation Section by visiting the CBA Litigation Section website.

This newsletter is for information only and does not provide legal advice.

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