Category Archives: Commentary

Richard Lance Gabriel begins his term as Justice of the Colorado Supreme Court

The Colorado Supreme Court’s 2015-2016 term will start with a new Justice: Court of Appeals judge Richard Gabriel.  He will start his term on September 1, 2015 following the retirement of long-time Justice Gregory Hobbs.

Attached is the PRESS RELEASE related to his appointment.

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Welcome to the Colorado Litigation Report

The Colorado Litigation Report is an online resource that tracks and summarizes Colorado appellate court decisions affecting civil and commercial law. Summaries answer three questions: what was the case about, what legal rules does it stand for, and how is it important? Each post answers all three questions in 750 characters or less. Posts are engaging, tell the story of the case, and summarize the legal result — in about 30 seconds. In a busy world, the CLR’s micro-summaries provide premium information and significant time-value to any practice or business.

The CLR will now link to the CBA’s page containing summaries rather than its copy of the opinions because CBA archived opinions are available to members only.

[Due to time constraints, the CLR no longer posts on all court of appeals civil opinions. The CLR also does not summarize Water Court appeals or Workers’ Compensation appeals].

When it comes to Colorado Supreme Court coverage, the CLR is the most comprehensive in the state. The CLR provides a single place to find original jurisdiction and certiorari grants. And the CLR is the only place to find which justice/s would have granted issues that were denied.

The CLR allows you to:

Please feel free to leave your comments under this or other posts. All comments are moderated before they are published. Click on the Contact CLR tab for more information about sending a private message. All respectful discussion is welcome.

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Motions to Stay pending Appeal?

C.A.R. 8 addresses motions to stay. Earlier this year, the Colorado Supreme Court amended Rule 8, as well as Rule 27 related to Motions. Although the changes are not particularly substantive, the language has been cleaned up.

Click to see the amendments to CAR 8 and 27 , which went into effect on January 7, 2015.

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Federal Practice: changes to FRCP and Colo. Dist. Local Rules

Colorado courts often look to the Federal Rules of Civil Procedure to interpret Colorado Rules with a substantially similar Federal counterpart.  (See Garcia v. Schneider Energy Services, Inc., 287 P. 3d 112 – Colo: Supreme Court 2012) (offering a detailed review and analysis of Colorado’s Rule 15 and comparing and contrasting Federal Rule 15).

The US Supreme Court transmitted to Congress on April 29, 2015 changes to the following Federal Rules of Civil Procedure to become effective December 1, 2015 absent contrary Congressional Action:

Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55, and abrogation of Rule 84 and the Appendix of Forms.

The District of Colorado’s Local Rules have been amended as well, but only minimally, and mostly to reflect changes in electronic case filing.

For a copy of the revised rules as submitted to Congress, click 2015 Amendments to FRCP.

For a red-lined copy, click Proposed 2014 Amendments.

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Short Summary of notable changes to the Rules of Civil Procedure effective July 1, 2015

Major changes to the Colorado Rules of Civil Procedure have been in the works for the last few years.  The Civil Access Pilot Project tested many rule changes and the Court took comments and opinions from the public and attorneys earlier this year.  Those changes have now become a reality for civil litigators.  HERE IS A LINK TO THE REDLINE OF THE RULE CHANGES.

The Colorado Rules of Civil Procedure that have been amended are as follows: Rules 1, 12, 16, 16.1, 26, 30, 31, 33, 34, 37, 54, and 121 §1-22, and the Proposed Case Management Order.

If you are familiar with the CAPP Rules, many of these changes will come as no surprise. The new rules are not duplicative of the CAPP rules, however.

Also, the new “Proposed Case Management Order” is not the same as the old “ICMC Joint Reports” that were filed before.  In person or telephonic attendance at an initial case management conference is required unless dispensed of by the court upon the joint request of the attorneys.

CHANGES AND OFFICIAL COMMENTS WORTH NOTING INCLUDE:

Comments to CRCP 1:

“[1] The 2015 amendments are the next step in a wave of reform literally sweeping the nation. This reform movement aims to create a significant change in the existing culture of pretrial discovery with the goal of emphasizing and enforcing Rule 1’s mandate that discovery be administered to make litigation just, speedy, and inexpensive. One of the primary movers of this reform effort is a realization that the cost and delays of the existing litigation process is denying meaningful access to the judicial system for many people.

[2] The changes here are based on identical wording changes proposed for the Federal Rules of Civil Procedure. They are designed to place still greater emphasis on the concept that litigation is to be treated at all times, by all parties and the courts, to make it just, speedy, and inexpensive, and, thereby, noticeably to increase citizens’ access to justice.”

CRCP 16(11) & (12) – CASE MANAGEMENT:

(11) Discovery Limits and Schedule. Unless otherwise ordered by the court, discovery shall be limited to that allowed by C.R.C.P. 26(b)(2). Discovery may commence as provided in C.R.C.P. 26(d) upon service of the Case Management Order. The deadline for completion of all discovery, including discovery responses, shall be not later than 49 days before the trial date. The proposed order shall state any modifications to the amounts of discovery permitted in C.R.C.P. 26(b)(2), including limitations of awardable costs, and the justification for such modifications consistent with the proportionality factors in C.R.C.P. 26(b)(1).

(12) Subjects for Expert Testimony. The proposed order shall identify the subject areas about which the parties anticipate offering expert testimony; whether that testimony would be from an expert defined in C.R.C.P. 26(a)(2)(B)(I) or in 26(a)(2)(B)(II); and, if more than one expert as defined in C.R.C.P. 26(a)(2)(B)(I) per subject per side is anticipated, the proposed order shall set forth good cause for such additional expert or experts consistent with the proportionality factors in C.R.C.P. 26(b)(1) and considering any differences among the positions of multiple parties on the same side as to experts.

CRCP 26(b)(4)(D) – DISCLOSURES (limitations):

(D) Rule 26(b)(3) protects from disclosure and discovery drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded, and protects communications between the party’s attorney and any witness disclosed under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(I) relate to the compensation for the expert’s study, preparation, or testimony;

(II) identify facts or data that the party’s attorney provided and which the expert considered in forming the opinions to be expressed; or

(III) identify the assumptions that the party’s attorney provided and that the expert relied on in forming opinions to be expressed.

COMMENT 20 TO CRCP 26 also notes the following about expert disclosures:

“The 2015 amendment also requires that, if a deposition reveals additional opinions, previous expert disclosures must be supplemented before trial if the witness is to be allowed to express these new opinions at trial. Rule 26(e). This change addresses, and prohibits, the fairly frequent and abusive practice of lawyers simply saying that the expert report is supplemented by the “deposition.” However, even with the required supplementation, the trial court is not required to allow the new opinions in evidence.”

CRCP 33(b)(1) – INTERROGATORIES

(1) An objection must state with specificity the grounds for objection to the Interrogatory and must also state whether any responsive information is being withheld on the basis of that objection. A timely objection to an Interrogatory stays the obligation to answer those portions of the Interrogatory objected to until the court resolves the objection. No separate motion for protective order pursuant to C.R.C.P. 26(c) is required.

CRCP 34 – REQUESTS FOR PRODUCTION

COMMENT 3:

“[3] Rule 34 is changed to adopt similar revisions as those proposed to Fed. R. Civ. P. 34, which are designed to make responses to requests for documents more meaningful and transparent. The first amendment is to avoid the practice of repeating numerous boilerplate objections to each request which do not identify specifically what is objectionable about each specific request. The second amendment is to allow production of documents in place of permitting inspection but to require that the production be scheduled to occur when the response to the document request is due, or some other specific and reasonable date. The third amendment is to require that when an objection to a document request is made, the response must also state whether, in fact, any responsive materials are being withheld due to that objection. The fourth and final amendment is simply to clarify that a written objection to production under this Rule is adequate to stop production without also filing a motion for a protective order.”

CRCP 37 – DISCOVERY SANCTIONS

COMMENT 3:

“[3] The threat and, when required, application, of sanctions is necessary to convince litigants of the importance of full disclosure. Because the 2015 amendments also require more complete disclosures, Rule 37(a)(4) now authorizes, for motions to compel disclosures or discovery, imposition of sanctions against the losing party unless its actions “were substantially justified or that other circumstances make an award of expenses manifestly unjust.” This change is intended to make it easier for judges to impose sanctions.”

CRCP 121 1-22 COSTS AND ATTORNEY FEES

COSTS. A party claiming costs shall file a Bill of Costs within 21 days of the entry of order or judgment, or within such greater time as the court may allow. The Bill of Costs shall itemize and provide a total of costs being claimed. Taxing and determination of costs shall be in accordance with C.R.C.P. 54(d) and Practice Standard § 1-15. Any party that may be affected by the Bill of Costs may request a hearing within the time permitted to file a reply in support of the Bill of Costs. Any request shall identify those issues that the party believes should be addressed at the hearing. When required to do so by law, the court shall grant a party’s timely request for a hearing. In other cases where a party has made a timely request for a hearing, the court shall hold a hearing if it determines in its discretion that a hearing would materially assist the court in ruling on the motion.

 

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Elizabeth L. Harris appointed to Colorado Court of Appeals

As announced in a press release issued May 29, 2015:

DENVER — Friday, May 29, 2015 —

Gov. John Hickenlooper announced today the appointment of Elizabeth L. Harris to serve as a judge for the Colorado Court of Appeals. She will fill a vacancy due to the retirement of the Honorable James S. Casebolt.

Ms. Harris is a sole practitioner, focusing primarily on appellate work, criminal defense and civil litigation.
Before establishing her own practice in 2013, Ms. Harris was an associate, of counsel and partner at Jacobs Chase (now Husch Blackwell) from 2003 to 2012.

Previously, Ms. Harris was an assistant federal public defender (2000 – 2003) and research and writing attorney at the Office of the Federal Public Defender (1997 – 2000).

From 1996 to 1997, she was a judicial clerk for the Honorable John Porfilio, United States Court of Appeals for the Tenth Circuit.

Ms. Harris received her undergraduate degree from Georgetown University in 1989 and her Juris Doctor from New York University School of Law in 1996. The appointment is effective July 1, 2015

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Colorado Supreme Court grants certified question of law

PURSUANT TO C.A.R. 21.1, the Court granted a certified question posed by the United States Bankruptcy Court, for the District of Colorado in No. 15SA68, In re Michael and Marlene Heimann.

This post will be updated when more information about the issue certified becomes available.

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Colorado Supreme Court to live video stream oral argument in 13SC394 (Brandon Coats v. Dish Network, LLC.)

Coats v. Dish Network (covered by the CLR) raises two issues that have generated a great amount of interest by the public:

Whether the Lawful Activities Statute, Section 24-34-402.5, C.R.S., protects employees from discretionary discharge for lawful use of medical marijuana outside the job where use does not affect job performance.

Whether the Medical Marijuana Amendment makes the use of medical marijuana ‘lawful’ and confers a right to use medical marijuana to persons lawfully registered with the state.

The Lawful Activities Statute protects employees from termination for off-the-job activities. Plaintiff, a quadriplegic, is licensed to use medical marijuana. Defendant fired plaintiff after he tested positive for marijuana, which was a violation of its drug policy. The court of appeals, applying the ordinary meaning of “lawful activity” as used in section 24-34-402.5, held plaintiff’s medical marijuana use, unlawful under federal law, was not “lawful.”

Because demand for seats in the courtroom outweighs availability, the Court will live stream the arguments on the Internet and the Court will live stream the argument in the first floor Court of Appeals courtroom.Tuesday, Sept. 30, 2014, 9 to 10 a.m.

Live video streaming can be accessed through: http://broadcast.coloradorcjc.gov/

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Today the Colorado Judicial Branch launches a Web site providing online educational resources about the judiciary and rule of law

The Colorado Supreme Court issued the following press release today launching an online resource center to increase the public’s understanding and access to Colorado’s Judicial System and the rule of law:

DENVER – The Colorado Judicial Branch today launched www.cjlc.org, a Web site dedicated to the Ralph L. Carr Colorado Judicial Learning Center and other online educational resources about the judiciary and rule of law. “I am very excited about the cjlc.org site and showcasing what I believe are some of the best educational resources available in any courthouse anywhere in the country,” said Colorado Supreme Court Chief Justice Nancy E. Rice. “I personally invite you, your family and friends to check out the site and then come visit the building and experience the Judicial Learning Center in person.”

The Web site features a video welcome message from the Chief Justice, as well as a virtual tour and description of the Judicial Learning Center’s 10 exhibits. The site also provides educators with downloadable lesson plans from the Colorado Department of Education and Supreme Court’s Courts in the Communityprogram.

Housed in the Ralph L. Carr Colorado Judicial Center (2 E. 14th Avenue, Denver, CO 80203), the 3,800-square-foot Judicial Learning Center is an innovative and engaging educational environment designed to provide visitors, young and old alike, with a better understanding of the laws and freedoms that govern our citizens, state and country. The Judicial Learning Center is open Monday-Friday 8 a.m. to 5 p.m. and admission is always free.

The Learning Center offers numerous interactive and standalone exhibits that teach the importance of the rule of law, how the state and federal court systems operate and even offers interactive role-playing opportunities. A group of judges, lawyers, educators and others spent more than 3 years designing and building the learning center.

Visitors to the Website may also book a guided tour of the Ralph L. Carr Colorado Judicial Center for groups of 15 or more. Guided tours include a visit to one or more of the courtrooms (as available), discussion about the Colorado court system and the Colorado Judicial Branch, a tour of the Ralph L. Carr Colorado Judicial Center and its public art, a visit to the Colorado Supreme Court Library, and time in the Colorado Judicial Learning Center.

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Colorado Civil Access Pilot Project Preliminary Analysis Released

The Institute for the Advancement of the American Legal System, has released a report detailing their Preliminary Analysis of the CAPP process.  From the IAALS blog, here is a partial summary of their findings:

Our initial analysis reveals that the CAPP process as a whole has succeeded in achieving many of its intended effects, including a reduced time to disposition, increased court interaction, proportional discovery and costs, and a lower level of motions practice. Much of the positive feedback relates to CAPP’s early, active, and ongoing judicial management of cases, with many calling for this to become a permanent feature of the rules. For those cases that are at least minimally contested, one of the challenges of the project relates to differences between simple and complex cases. The first part of the CAPP process (rolling and staggered deadlines for pleadings and initial disclosures) appears to work better in simple cases, while it can fall apart in complex cases. The second part of the CAPP process (everything from the joint case management report forward) appears to provide a real benefit for complex cases, while it can be too much for simple cases. This is just one nuance in the results, and the full report will provide interesting reading for those engaged in these issues—both inside and outside of Colorado.

The CAPP Rules were implemented by the Colorado Supreme Court to test whether “adopting certain rules regarding the control of the discovery process reduces the expense of civil litigation in certain business actions, and . . . the use of modified rules of Civil Procedure concerning the pleading, discovery and trial management of certain cases” would improve the civil litigation process.  As noted by the IAALS:

[T]he CAPP rules were designed to bring the disputed issues to light at the earliest possible point, tailor the process proportionally to the needs of the case, provide active case management by a single judge, and move the case quickly toward trial or other appropriate resolution.

All civil litigators in Colorado should be carefully following the progress of this Pilot Project.  The Colorado Supreme Court has already issued opinions requiring judges to actively intervene early in the discovery process.  In DCP Midstream, LP, v. Anadarko Petroleum Corp.; Kerr-McGee Oil & Gas Onshore LP; and Kerr-McGee Gathering LLC, 2013 CO 36 (June 24, 2013) the Court noted that:

The overriding purpose of the Colorado Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action.” C.R.C.P. 1. To this end, our rules reflect a growing effort to require active judicial management of pretrial matters to reduce delay and the increased costs associated with it. “Delay devalues judgments, creates anxiety in litigants and uncertainty for lawyers, results in loss or deterioration of evidence, [and] wastes court resources.” . . . Delay also increases costs. The increased costs associated with protracted litigation may force a party into an unwarranted settlement or may deter a party from bringing a viable claim. Active judicial management is necessary to address these problems, and our rules have evolved to stress this principle.

Regardless of form, active case management in civil cases is now the rule and not the exception.

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