March 18, 2018

Archives for October 2011

University of Denver to Host the First 2012 Presidential Debate

Today, October 31, 2011, the University of Denver Chancellor Robert Coombe announced that the Commission on Presidential Debates has selected the University of Denver as the host site for the first of three 2012 Presidential Debates. The debate will be held on Wednesday, October 3, 2012, in Magness Arena at the Daniel L. Ritchie Center for Sports and Wellness.

Mr. Comb will hold a press conference about the announcement at 3:00 pm MST today, which can be viewed live at

This is a historic event for our campus, our city and our state. The national and international spotlight will be on the University of Denver. Our commitment to addressing the great issues of the day and serving the public good make this event a perfect fit for us.

Hosting the presidential debate will provide rich opportunities for students, alumni and the community to learn about and engage in the political process. We will plan a number of educational programs and events that will be held throughout the year leading up to the debate.

DU has launched a debate website with news about the event. Questions can be directed to

Tenth Circuit: Unpublished Opinions, 10/28/11

On Friday, October 28, 2011, the Tenth Circuit Court of Appeals issued no published opinions and nine unpublished opinions.


Smith v. Wilson

Mendoza v. Winer

Proffit v. State of Wyoming

Robinson v. State of Kansas

United States v. Solorio-Mondragon

CFTC v. Lee

United States v. Bell

United States v. Villalobos-Varela

United States v. Koch

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Coach’s Corner: No Firm Needs to Be an Island

One of the many byproducts of the Great Recession has been a slowdown in the indiscriminate pursuit of law firm mergers.

Combining law firms to increase their size makes them better only when the parties have thought through what they want to accomplish and what synergies exist between them — and the recession showed that few merged firms have done so.

Size inevitably seems to create inefficiencies, and firms are slow to eliminate redundancies.

The strategic plan for firm mergers typically envisions economies of scale, the collaboration among organizations for enhanced product quality and even greater revenue. But such plans will fail without effective integration.

It is difficult to combine two organizations without a great deal of attention to the fears and hopes of the people in each organization. It is almost impossible do it “on the run,” the typical merger approach once the top leaders shake hands on their deal.

Formal mergers, however, are not the only way firms can achieve synergies. No law firm needs to remain an island when there are so many alternatives to merging. Firms can combine their strengths in a variety of informal arrangements that support better service to existing and potential clients.

Here are examples of potential approaches:

1.     Shared space

  • Small-firm or solo practitioners can structure an arrangement in which lawyers share the expense of a reception area, conference rooms, clerical staff and office equipment.
  • Another strategy is renting an office in a larger law firm on a monthly basis, with opportunities for the sub-tenant (small firm) and the tenant (large firm) to refer work back and forth.

2.     Contract lawyers

  • Many small firms hire contract lawyers to provide legal counsel on a specific matter beyond their practice or geographic scope. The contracting firm has oversight of the outsourced legal work and communicates with the client on how the work is applied.
  • Participants in a contract agreement should have their own written fee arrangements.

3.     Retainer arrangements

  • To better serve full-spectrum needs of business clients, firms can establish ongoing mechanisms to call on other allied lawyers as “outside counsel” for help as needed. Such contract arrangements can contribute to work and cost efficiencies if used correctly, particularly if the lawyers involved bill at different rates.

4.     Offshoring arrangements

  • Firms can use high-speed Internet technology to connect with the growing pool of highly educated talent in developing countries where the use of English is widespread, India being the prime example.
  • Such offshore legal service providers can reduce by up to 80 percent the cost of legal functions like research, document review and patent searches, with the work delivered electronically and produced under the firm’s supervision.

5.     Virtual alliances

  • Although these are still emerging, one such model is a group of lawyer-entrepreneurs called Virtual Law Partners, a firm that employs lawyers who work at home and correspondingly saves on overhead and costs clients less in legal fees.
  • The firm and its lawyers are available for contract arrangements, except for litigation (because all work is done at home), and the lawyers keep 85 percent of what they bill. It’s a novel arrangement, but one that, like all of these informal combinations, recognizes the law’s changed business dynamics and client expectations.
Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on May 23, 2011.

Make History Colorado Pro Bono Campaign Launched

Throughout the long history of the legal profession, pro bono has been at its core. Our laws and rights have been shaped by monumental cases, handled by great lawyers in history, and many of these cases were handled by lawyers who took the case pro bono.

Though National Pro Bono Week is nearing its end, the need for pro bono legal services is there all year-round. In the past months, pro bono has been a hot topic nationally and locally, whether it’s articles about funding cuts for legal services providers or Colorado Supreme Court Chief Justice Michael Bender’s initiative to increase pro bono work for the indigent.

This week, the Make History Colorado pro bono campaign was launched by the Colorado Bar Association and the Colorado Access to Justice Commission. The goal of the campaign is to educate and link attorneys to resources on and opportunities to provide pro bono legal services.

The website for the campaign,, will connect attorneys with pro bono opportunities, provide information about rules relevant to pro bono legal services, and share how to become involved with the Colorado Supreme Court Pro Bono Legal Service Commitment and Recognition Program.

Below is the video that introduces Make History Colorado. The CBA tapped attorneys who regularly provide pro bono legal services, and members of the judiciary, including Chief Justice Bender and Justice Greg Hobbs, and asked them to share why pro bono matters to them.

As you’ll see, they all have different reasons, but narrator John Moye reminds us to, “Make History. Only you can.”

In the comments, share with us why pro bono matters to you.

Strikes for Tykes: Strap on Your Bowling Shoes with the DBA to Benefit Children’s Outreach Project

On November 5, the Community Action Network of the Denver Bar Association will present the first annual Strikes for Tykes bowling event to raise funds for Children’s Outreach Project, a non-profit, therapeutic preschool and child care center serving north Denver and the surrounding communities. The vision of Children’s Outreach Project is “to provide young children of all abilities with excellent early childhood education and care that is affordable for families.”  This exciting event is a fun and wonderful way to give back to our community and it will be held from 11:30 am until 3:00 pm at the Elitch Lanes Bowling Alley, 3825 Tennyson Street in Denver.

As part of your support for the Community Action Network and the Children’s Outreach Project, you will receive bowling, shoe rental, food and drinks, and will be eligible to win prizes awarded for the highest scores!  Registration is $50 for adults and $35 for children, with a $5 per person discount if you sign up with a team of four.

So strap on your bowling shoes, team up with your friends and family, and join the Community Action Network and Children’s Outreach Project for an afternoon of fun and community support.  More importantly, please visit for additional information on Children’s Outreach Project and the amazing work it does on behalf of the children in our community.

For registration or questions, please contact Kasi Schuelke at or (303) 623-1836 or Evan Lee at or (303) 623-1840.

Thanks in advance for your wonderful support of Strikes for Tykes and Children’s Outreach Project and we look forward to seeing you on November 5!

Colorado Court of Appeals: Announcement Sheet, 10/27/11

On Thursday, the Colorado Court of Appeals issued six published opinions and forty-nine unpublished opinions.


People v. King

People v. Warrick

Board of County Commissions of the County of Park v. Park County Sportsmen’s Ranch, LLP

Planning Partners Int’l, LLC v. QED, Inc.

People In the Interest of Joyce A. Strodtman

Tomar Development, Inc. v. Bent Tree, LLC

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: No Excusable Neglect when Failed to Explain Why Required 3 Months to Locate Counsel and 3 More Months to File Motion

The Tenth Circuit Court of Appeals issued its opinion in Marcus Food Co. v. DiPanfilo on Thursday, October 27, 2011.

The Tenth Circuit affirmed the district court’s decision. Respondent, a food company based in Kansas, entered into an oral agreement with Petitioner, a citizen of Toronto, Canada, under which Petitioner served as an independent sales and purchasing agent for Respondent. “The agreement included a provision that rendered [Petitioner] liable to [Respondent] for 45% of any net losses on his accounts. After the parties’ relationship ended 10 years later, [Respondent] attempted to collect on debts allegedly owed it under the agreement by suing [Petitioner] in the United States District Court for the District of Kansas. A default judgment was entered against [Petitioner] following his failure to appear or respond to the complaint. [Petitioner] moved to set aside the default judgment six-and-a-half months later on the grounds that it was void for lack of jurisdiction and/or because his delay was due to excusable neglect. After a hearing, the court denied {Petitioner]’s motion, finding personal jurisdiction over [him], subject matter jurisdiction over the case, and insufficient support for his excusable-neglect argument.”

The Court agreed with the district court’s findings. “The parties’ conduct demonstrates that they intended to create a continuing relationship” in which Petitioner would serve as an agent of Respondent and would receive compensation in exchange for his work. “His contacts with Kansas arise out of this relationship and are sufficient to meet the threshold for minimum contacts supporting jurisdiction. By entering into this contractual relationship and benefitting therefrom, [Petitioner] availed himself of the forum and should have anticipated that he might be haled into court there in the event of a contractual dispute.” Additionally, Respondent’s complaint contains no amount-in-controversy defects to warrant reversal on subject matter jurisdiction grounds. Lastly, the district court correctly concluded that Petitioner “failed to demonstrate excusable neglect because he could not explain why he required three months to locate counsel and an additional three month to file his motion.”

Tenth Circuit: Unpublished Opinions, 10/27/11

On Thursday, October 27, 2011, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.


Anderson v. The Cato Corp.

QEP Energy Co. v. Sullivan

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

District Court Judge Brian Boatright Appointed to the Colorado Supreme Court

Today, October 27, 2011, Governor John Hickenlooper announced his appointment of First Judicial District Court Judge Brian Boatright as the newest Colorado Supreme Court Justice.

Judge Boatright will replace Justice Alex J. Martinez who is retiring on October 31 after fourteen years on the bench.

Boatright, 49, is the 102nd person in the state’s history to be appointed to the Colorado Supreme Court.

He has been a District Court Judge in the First Judicial District, which serves Jefferson and Gilpin counties, since 1999. Boatright has dedicated much of his time on the bench presiding over juvenile matters and was voted Colorado CASA Judicial Officer of the Year in 2011.

Boatright also served as a Deputy District Attorney for the First Judicial District (1990-1999).  He earlier was an associate attorney at Boatright and Ripp. Boatright earned his bachelor’s degree from Westminster College in Fulton, Missouri, and his law degree from the University of Denver. He and his wife have two children and live in Arvada.

Boatright will serve a provisional term of two years. If retained by voters, he will then serve a 10-year term.

Tenth Circuit: Unpublished Opinions, 10/26/11

On Wednesday, October 26, 2011, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.


Jackson v. Mullin

CCCOK, Inc. v. Southwestern Bell Telephone, L.P.

United States v. Springer

Phillips v. Addison

Davis v. Medina

United States v. Corley

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado State Court Administrator Issues Judicial Resource Manual for Management of Protective Proceedings

The Colorado Supreme Court has issued a new Chief Justice Directive, which was adopted and effective as of September 2011.

CJD 11-03, Protective Proceedings Policies and Procedures, directs that each court of record, including judicial officers and all Judicial Department personnel, must comply with the section of the Judicial Resource Manual containing policies and procedures for protective proceeding cases.

The Judicial Resource Manual was updated in October 2011 and was recently posted online by State Judicial. The Manual can be reviewed here.

CJD 11-03 – “Protective Proceedings Policies and Procedures.”

Judicial Resource Manual on Protective Proceedings (October 3, 2011).

Point / Counterpoint: Initiative 300 Is a Bad Law for Denver and Not What the Doctor Ordered

Editor’s Note: this Point/Counterpoint series will focus on Initiative 300, which appears on the November 2011 ballot in Denver. The initiative aims to provide paid sick and safe time for Denver workers. Click here to read Initiative 300 for yourself. The Colorado Bar Association CLE also welcomes your comments on the issue. No matter what type of law you practice or how you come down on the issue, please feel free to continue the discussion in the comments section below.

The other side of this Point/Counterpoint can be found here.

I would like to start by thanking Linda Meric for agreeing to submit a point-counterpoint to the Colorado Bar Association CLE. I have known Linda since she worked for the Service Employees International Union. We have been on opposing sides many times, and also agree on even more issues. Unfortunately when it comes to Initiative 300, the safe and sick leave proposal in Denver, it seems we find ourselves in disagreement again.

If passed, proponents would have voters believe they won’t be served by sick waiters, eat food cooked by sick chefs, or have their temperature taken by sick nurses. If you’re reading this on the Colorado Bar Association CLE’s website, you are probably an attorney. You almost certainly work in an office that offers sick leave. Yet, don’t we all know people who could stay home but come to work with every cold? Initiative 300 won’t change that.

That’s why opponents include the Colorado Hospital Initiative, which points out this law does not translate into a healthier workforce. Additional opponents include Denver Mayor Hancock, Governor Hickenlooper, the Denver Metro Chamber of Commerce, the Hispanic Chamber of Commerce of Metro Denver, the Colorado Black Chamber of Commerce, the Colorado Women’s Chamber of Commerce, and the list goes on. A detailed list is available at the No-On-300 campaign’s website.

Initiative 300 Is Bad Law

I’d like to be very clear. I know Linda and her colleagues only want what is best for Denver. As an attorney who has represented employers for 20 years, I too have tried to make our workplaces more productive, more profitable, and more secure. Even if we could afford Initiative 300 (and as I explain below, we can’t), it’s poorly drafted and invites unproductive litigation.

Employers would be required to provide a half-hour of paid “sick and safe” leave for every 30 hours worked. “Safe and sick leave” would be capped at either 72 hours (9 days) per employee per year, for employers of 10 or more people, or 40 hours (5 days) per year, for employers of fewer than 10 people.

Employees who work 40 or more hours per year in the City and County of Denver would be eligible for this new leave even if they only work part-time or temporarily. As opponents correctly point out, Initiative 300, therefore, would single out Denver employers. Only companies that employ people within Denver would be required to provide this leave. Why disadvantage Denver’s employers in this increasingly competitive environment?

Worse, in an example of the Initiative’s poor drafting, it would apply to any company that employs someone for more than 40 hours in Denver per year. A company that is located outside Denver but has people working inside Denver would trigger the law. Consider a simple pizza restaurant on the edge of Denver in, say, Aurora. This law would reach out and purports to command compliance by that company. How is that even possible legally? Even more troubling, none of the company’s other employees would be entitled to this leave, only the delivery person who accumulates more than 40 hours of work in Denver per year.

Perhaps one example of poor drafting makes the point best. Unlike any other employment law, Initiative 300 would create a legal presumption of retaliation. If a company disciplines, much less discharges, a worker within 90 days after an individual takes such leave, retaliation is presumed. Leave can be taken in as little as 1-hour increments, which means an employee can take leave frequently throughout the year. In other words, there may never be a 90+ day period of time after an employee takes leave to shield employers from this presumption.

Large employers and their counsel should not ignore Initiative 300. They may feel that since their company/client already provides paid sick leave, Initiative 300 won’t change anything. Not true. It will have a major cost even to such employers. Not only would it create this presumption of retaliation, but the initiative will require additional leave. Proposed section 28-244(a) says only that this new leave does not displace any leave policy that “is more generous than the one required herein.” The proposed Act does not define what is “more generous” or how this can be determined.

Indeed, no employer is currently offering the same levels of safe or sick leave that the Initiative would require. For example, “safe” leave is defined in section 28-237(a)(2) of Initiative 300 to include a number of things for which paid leave is not currently available at most employers, such as time “making the employee’s home secure from the perpetrator of the act of domestic abuse, stalking or sexual assault or other crime involving domestic violence or seeking new housing to escape said perpetrator.”

Likewise, section 28-237(a)(1) of Initiative 300 defines “sick” leave to include additional kinds of paid leave that are not currently available at most employers, such as time spent caring for a family member. This would effectively constitute paid FMLA leave.

San Francisco

Comparisons to San Francisco’s sick/safe leave law are incorrect. Denver’s proposed law, unlike San Francisco’s, would actually prohibit an employer from requiring documentation of the need for leave if the employee takes the leave in blocks of less than 3 consecutive days. San Francisco’s law also does not raise the “pizza delivery” problem. Lastly, San Francisco’s law allows employers and unions to collectively bargain different or even no safe/sick leave rights, unlike Denver’s.

Initiative 300 Is Just Too Costly

The costs of this initiative will be high. The City and County of Denver has calculated its costs, alone, will be $690,050. A small employer can anticipate just over $1,000 per year per employee, and an employer of 10 or more, more than twice that. Larger employers will effectively be paying the cost of one more worker for every 30 they currently employ.

Proponents concede Initiative 300 will be costly. They challenge the $690,050 estimate and recently commissioned their own analysis. Their report still ended up with an estimate of $277,179 for the cost to the City.

Whether it’s $690,050 or $277,179, the Mayor and the majority of City Council are right: It is too much at a time when the City is struggling to meet budget.

In short, Initiative 300 is a well-intentioned but poorly drafted law. It is exactly not what the doctor prescribed for Denver’s economy.

Bill C. Berger, Esq., is a shareholder at Brownstein Hyatt Farber Schreck, LLC. His practice emphasizes the representation of management and employers in labor and employment law matters, including both preventive counseling and litigation. Reach him at (303) 223-1178.

The opinions and views expressed by contributors to CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.