Vol. 33, No. 2
CBA President's Message to Members
Communications, Miscommunications, And Ideas from Around Colorado
by Robert J. Truhlar
|Robert J. Truhlar|
The general theme for this month’s column is communications. The column is separated into two parts. First, I discuss the comments that I’ve received from attorneys throughout Colorado about current trends in the legal profession and judicial system. Many of these comments involve a need to communicate better with the public and Colorado legislators regarding attorneys and the courts. Second, in a more humorous vein, I relate some good stories about miscommunications from my days with Frontier Airlines.
Concerns of Attorneys Across the State
In conversations with attorneys during the past six months, especially as I traveled for my President’s Visits to cities outside Denver, I heard many thoughts and ideas from Colorado Bar Association members. One of the segments of our continuing legal education program for the President’s Visits involved discussions with experienced judges and practicing attorneys serving as panel members.
The participants of these panels addressed current trends in regulating attorney conduct, attorney/client relations, and fee arrangements. Public perceptions were analyzed. We talked about: (1) current proposed rules changes; (2) the effects that the crowding of dockets and pro se filings are having on the availability of jury trials; and (3) the general impact that judicial budget cuts is having on the practice of law and access to the courts. These discussions elicited interesting responses, both from the panelists and those in attendance who accepted our invitation to use an open microphone. The following major concerns of lawyers around the state were communicated to me.
More Community and Legislative Involvement Needed: Lawyers recognize the need for more involvement in their communities. We must take leadership positions. We create a positive image for attorneys when we are leaders in our Rotary Clubs, non-profit boards, political parties, our children’s sports and mock trial teams, schools, and community groups. We must show not just our clients who we are, but also the entire public.
Furthermore, our legislature is suffering from a lack of legally trained senators and representatives. More lawyers should consider running for public office. People making our laws often do not understand how the legal system really works. All politics are local, and we must know our own legislators and communicate with them.
Contingency Fees Have a Purpose: Prior proposed legislation would have restricted the use of contingency fees, and a more recent national petition was intended to eliminate contingency fees. As a result, lawyers believe there is a lack of understanding of how contingency fees provide court access to those who would otherwise be unable to afford to use our justice system. We obviously need to communicate this better and dispel the myths. Also, with respect to fees, lawyers remain opposed to the English Rule of fee awards (loser pays).
Increase Education on the Legal System: Lawyers widely believe that the publicity of extraordinary legal cases with high jury verdicts, especially if associated with questionable or unusual facts, trivialize the civil justice system. Everything is blamed on litigation, but cost and delay in access to justice are public concerns. Education about the legal system, civil rights, and due process must be increased. While the public may not be well informed, in many cases there is a kernel of truth to what is believed. We need to better communicate in this important area.
Tooting Our Own Horn: Attorneys generally believe they receive no credit for the many worthy causes they represent and the everyday good they bring to most of their clients. Lawyers must do better in bringing all of their pro bono work to the public’s attention. We need more communication. It would probably be a good idea for local bar associations to have publicity chairs who would help get out the "good word."
Funding the Judiciary and Honoring the Profession: Bar associations should be more proactive in explaining the need for an adequate judicial budget and in describing "lawyering" as an honorable profession. More and improved communications by all of us is the key. Talking with our legislators is critical.
Promoting the Image of Lawyers: Lawyers must take to heart the perception by some that they cannot be trusted and are only out to make money. John Grisham’s bestsellers King of Torts or The Summons glorify that image. We must earn the public trust.
Importance of a Strong Judicial System: A major concern is the privatization of our civil justice system, and whether the privately paid system of mediators and arbitrators is in the public interest. Court dockets are overcrowded, and parties now use alternative dispute resolution systems to receive expeditious decisions. Civil matters, especially trials, are given low priority, yet people still want their day in court. Attorneys must preserve the civil justice system and the right to a jury trial in our courtrooms with our appointed judges. We must communicate to the public the importance of a strong judicial system for the preservation of a free society.
Preserving Client Advocacy: In matters of streamlining our civil justice system or taking some cases out of the judicial system altogether, attorneys reiterated the obligations they have first to their clients and their duty to preserve client rights. It was also stated that attorneys have obligations to the court to be prepared, avoid delays, meet deadlines, follow the rules, and get issues resolved quickly. Ethical and professional conduct was stressed. If we don’t find a way to solve access to justice problems ourselves, others will continually attempt to regulate us through legislation or other means.
Improving Judicial Control of the Courtroom: Lawyers believe that courts do not adequately use sanctions to curb unprofessional or unethical behavior when it is obvious and egregious in civil matters. Attorneys want judges to be more proactive in this area. Also, lawyers believe motions need to be reduced in their numbers, but that those filed need to have swift rulings.
Opposition to Changes to Rule 16: Revisions to Colorado Rule of Civil Procedure 16.1 (see "Court Business" in the January 2004 issue of The Colorado Lawyer at page 107) will become effective July 1, 2004. In discussions focused on the changes, lawyers around the state overwhelmingly opposed the rule changes. Their reasons were as follows:
• Rules changes that do not guarantee quicker, less costly access to the judicial system for clients serve only to make the handling of a case more costly or unfair. Lawyers outside the Denver metropolitan area often commented that innovations intended to be beneficial in metropolitan areas with heavy caseloads can have a detrimental effect in outlying parts of the state. In these outlying areas, additional rules often raise the cost of practice and interfere with the established attorney-client relationship and methods of practice.
• Attorneys believe that discovery is in the best interest of their clients and that trials with limited discovery may lead to trial by ambush, which is chaotic and should never return. Lawyers also believe that before new rules are added or current rules are amended, it is important that the current rules be followed and enforced.
These are just some of the frequently stated comments by attorneys throughout the state. These issues seem to require a continued and intensified study and comment by attorneys in this new year.
If you have any other major concerns about the legal system or the practice of law, do not hesitate to e-mail me at truhlarcba@ att.net.
Some Examples of Miscommunications
In the first paragraph of this column, I said that I would tell some funny miscommunication stories from my days with Frontier Airlines. Here they are.
The Courtesy Paging Phone
Prior to going to law school, I worked for Frontier as a ticket counter agent (and later as a trainer, supervisor, and manager). I remember one passenger who came up to the counter and inquired, "Where is the courtesy paging phone?" I pointed in front of my ticket counter to a structural pillar and told the passenger, "It’s hanging on that post."
I was entertained when he walked up to the post and, in a very loud voice, began yelling into a covered thermostat on the near side of the post, while the white courtesy phone hung on the other side. He was not shy in the volume of his announcement for his brother to meet him at the Frontier counter. It was one of those moments you always savor while working with a long line of rushed passengers.
Where (and What) is Gate 2?
On another occasion while supervising the ticket counter, I was asked for directions to Gate 2, which was the first boarding area on the old D Concourse at the old Stapleton International Airport. The D Concourse was directly behind the Frontier ticket counter. I told the passenger to go behind the ticket counter and down to the first gate on the left, which was Gate D2.
About two hours later, this very memorable passenger came back to me at the ticket counter and said, "Why hasn’t the 3 o’clock plane to Dallas boarded at gate number 2?" By then, it was 3:30, and I was sure that the 3 o’clock flight had already departed. I asked him if he had waited at Gate 2 and he said he absolutely had; his eye was on the door the whole time. The 3 o’clock plane to Dallas had left on time.
I asked him to show me where he had waited, since it made no sense that he could have missed the flight. I left with him and he pointed to a chair directly behind the back of the ticket counter. He said, "I’ve been sitting here the whole time." I responded, "This isn’t Gate 2. D2 is the first gate down the concourse." He said, "I’ve been watching Gate 2," and pointed to the second of three metal detectors lined up in a row. I then noticed for the first time that the three magnetometers had the numbers 1, 2, and 3 above them.
My directions had sent him to a chair directly behind the ticket counter, where he stared at a walk-through magnetometer for two hours, waiting for an airplane to pull up next to it inside the airport. I was speechless. I then proceeded to rebook his reservation on a later flight, compliments of the airline.
My last airline story is topical today because it relates to airline security. It also could never happen today, given the much more stringent rules regarding security. During my time at Frontier, I was in charge of the security area for the D Concourse soon after x-ray machines and hand-wanding were the norm. At that time, it was new for all passengers to be screened before boarding their flights. For those of you who are a few years younger than I, it is interesting to remember that there was a time before we had security screening. In the mid-1970s, security became regulated and became required for the first time in U.S. airports.
This third scenario involves security, a doctor, failure to communicate, and body parts. I got a call from the security checkpoint supervisor telling me that they had allowed a doctor with a white Styrofoam case to go through security without being screened, because he claimed it contained organs for transplant surgery and could not be x-rayed without damaging the organs. On second thought, the security supervisor wondered if he should have received some higher authorization to allow this person to pass through security.
I asked him to explain the situation one more time, and indeed it sounded as if someone carrying a sealed ice cooler had convinced people not to check it, had passed through security, and the cooler was about to board a flight without that person being on board. Today, they would shut down the airport for hours. Back then, I got to decide what happened.
By the time I arrived at the gate, the doctor had talked the cooler all the way onto the airplane, and it was resting in a front coat closet, unattended. The doctor had left, but guaranteed that someone would be waiting for it at the end of the flight. The boarding agent only knew the name of the hospital with which the doctor claimed to be associated. The senior gate agent told me that the doctor had convinced him the contents were important to save lives in another city and must go on this flight. There was no paperwork and no name of the doctor, just the cooler, taped shut, sitting on the airplane.
I ordered the flight held and decided to call the hospital. I asked to talk with the head of the institution. Fortunately, on telling my story and the dilemma I faced to an administrative assistant, I was connected directly to the head of the hospital. When describing the event, I gave a description of the doctor. With a laugh, the head of the hospital immediately recognized the description of the doctor as one of their top surgeons in the transplant field. I then paged that doctor to return to the gate immediately. Within five minutes, he was at the gate, irate and wondering why the plane had not yet departed. I explained to him the need for some paperwork, and began to think about the paperwork I was going to fill out because I had delayed the scheduled departure.
After we documented the events, I talked with the doctor and walked him to the front of the airport, explaining that, in the future, we needed advance completed forms and notification. When he told me his car was parked at the curb, I knew we were about to face our next bit of trouble. As we walked outside the airport to the drop-off curb, a policeman was walking away, and a tow truck was taking the doctor’s Lincoln Continental to the airport pound.
I went to the police officer and begged him to have the tow truck return the car. I explained that this doctor saved lives through transplants, and this had been an emergency drop-off of a body part. I asked the officer to humor us and please bring the car back. Luckily, he did just that. I then decided that I should attend law school in order to put my problem-solving and communication skills to better use.
Let’s Work at Communicating Better
We can do a better job of communicating with the public than I did back in my days with Frontier Airlines, and certainly we can do a better job of communicating than the emergency transplant surgeon. Let’s put our heads together and figure out how best to make sure our message is heard!
Postscript: In last month’s column, my wife Doris and I told you about our trips around Colorado on behalf of the CBA. The column was supposed to have the bylines of both Doris and me. Whoops! Apologies to Doris.
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