May 18, 2012

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Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena; Effective in July

April 23, 2012 By Leave a Comment

The Colorado Supreme Court has amended Rule 17(h) of the Colorado Rules of Criminal Procedure – Failure to Obey a Subpoena. The rule change comes after the Court requested comment last year. The new rule reads:

(h) Failure to obey subpoena.

(1) Contempt. Failure by any person without adequate excuse to obey a duly served subpoena may be deemed a contempt of the court from which the subpoena issued. Such contempt is indirect contempt within the meaning of C.R.C.P. 107. The trial court may issue a contempt citation under this subsection (1) whether or not it also issues a bench warrant under subsection (2) below.

(2) Trial witness—bench warrant.

(A) When it appears to the court that a person has failed without adequate excuse to obey a duly served subpoena commanding appearance at a trial, the court, upon request of the subpoenaing party, shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court immediately upon apprehension or, if the court is not then in session, as soon as court reconvenes. Such bench warrant shall expire upon the earliest of:

(i) submission of the case to the jury; or

(ii) cancellation or termination of the trial.

(B) Upon the person’s production in court, the court shall set bond.

This amendment was adopted on April 23, 2012 and is effective July 1, 2012.

Click here to review the red line changes to Rule 17(h), outlined as Rule Change 2012(05).

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Change of Address, Bounce-Back Email, and Non-Admitted Appearance Processes Revised by United States District Court for Colorado

April 19, 2012 By Leave a Comment

The United States District Court for the District of Colorado has revised its rules regarding how the court will process attorney address changes, email bounce-backs, and appearances by non-admitted attorneys. It is important for attorneys to be aware of their obligations to the courts, especially regarding how to proceed when you change your physical address or email address or when you need to appear before the court when you are not admitted:

Change of Address:

Currently, clerk’s office staff compare the signature block of an attorney’s most recent filing with the attorney’s contact address information in CM/ECF and, when needed, will update the contact information to comport with the most recent provided address. The current process of checking for address changes for attorneys is very time consuming and impedes on the time needed to address the efficient docketing of case filings and court actions.

Compliance with local rules D.C.COLO.LCivR 10.1M and D.C.COLO.LCrR 49.3M regarding notice of change of address falls exclusively upon attorneys. Clerk’s office staff should not provide attorney support work regarding the checking for a need to update an address. Staff will, therefore, no longer automatically check for address update information and will rely on proper notice by the attorney as required by the Court’s local rules. This revised process will go into effect on April 9, 2012.

Bounce-back Emails:

In 2005, when the court went live on electronic filing, the clerk’s office began to monitor bounce-back emails related to electronic case entries posted by clerk’s office staff, chambers staff, or attorney counsel. Typically, bounce-back emails occur as a result of counsel’s failure to update their email addresses. The monitoring process was initially implemented as a check to the innovative use of electronic filing and service and notice of the same. Use of electronic filing is now the standard process for all attorneys to post and receive case information.

As directed by local rules D.C.COLO.LCivR 5.2D, D.C.COLO.LCivR 10.1M, D.C.COLO.LCrR 49.2D, and D.C.COLO.LCrR 49.3M, counsel are to inform the court of any change of email address within 5 days of the change. Whenever an attorney filer’s email address changes, the attorney is to electronically update her/his ECF electronic profile to activate the new email address. As long as an attorney is in good standing with the bar of the Court, it is the attorney’s responsibility to keep his/her email address(es) current regardless of place of employment, whether or not counsel of record in an open or closed case, or even if no longer practicing law.

It has been the experience of clerk’s office staff that bounce-back emails resulting from wrong email addresses occur in a variety of situations. Attempts to determine correct email addresses are very time consuming and often unproductive due to non-responsive attorneys. A number of opinions from district and appellate courts exist citing the responsibility of counsel to monitor the docket of the court for the need to address such matters as maintaining up-to-date contact information, including current email addresses. Therefore, effective April 9, 2012, the clerk’s office will no longer monitor bounce-back emails. Should chambers have a question about a specific attorney’s email address, clerk’s office staff will certainly assist with any effort to address the question.

Non-Admitted Appearing Attorneys:

In the past, when an attorney made an appearance pursuant to D.C.COLO.LCivR 11.1A or D.C.COLO.LCrR 44.1A, and the attorney was not admitted to practice in this court, clerk’s office staff would contact the attorney by phone, email, or letter informing her/him of the duty to seek admission or withdraw his/her appearance. An attorney may be contacted multiple times over a protracted period. Unfortunately, this time consuming process does not usually result in the attorney taking the requested action. When no action is taken by the attorney, the clerk’s office notifies chambers that the attorney has been unresponsive.

To streamline this procedure and focus the responsibility on the attorney’s obligation to comply with the local rules, the clerk’s office will begin using the following docket entry in place of the an attempt to gain compliance via direct contact:

“The Court construes that (name of attorney) has entered an appearance as an attorney in (cite the case number.) Pursuant to (D.C.COLO.LCivR 11.1A or D.C.COLO.LCrR 44.1A), only members admitted to the bar of this court can enter an appearance as an attorney. The attorney records of the court do not reflect that (name of the attorney) is a member of the bar. Unless an application for admission to the bar is received within 20 days of the date this entry, further action may be taken by the court.”

Streamlining the procedure will eliminate letters, emails, and phone calls by clerk’s office staff and may further assist in reducing associated work performed by chambers staff. The docket entry will provide notice to appearing attorneys and chambers. This procedure will go into effect on April 9, 2012.

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Colorado Supreme Court Makes Minor Change to Rule for Judicial Duty to Report Misconduct

April 17, 2012 By Leave a Comment

The Colorado Supreme Court has amended Chapter 20 of the Colorado Rules of Civil Procedure, Rule 251.4 – Duty of Judge to Report Misconduct or Disability. The minor change updates a reference to the Colorado Code of Judicial Conduct. The updated rule now references RULE 2.15 instead of Canon 3(B)(3).

This amendment was adopted on April 12, 2012 and is effective immediately.

Click here to review the red line changes to Rule 251.4, outlined as Rule Change 2012(04).

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CRCP 121 Statewide Practice Standards Amended by Colorado Supreme Court

March 2, 2012 By Leave a Comment

The Colorado Supreme Court has amended Rule 121 of the Colorado Rules of Civil Procedure, Local Rules – Statewide Practice Standards. The change was made to Section 1-15 Determinations of Motions. The amendment adds a tenth item, with no change to the preceding nine paragraphs:

10. PROPOSED ORDER. EACH MOTION SHALL BE ACCOMPANIED BY A PROPOSED ORDER SUBMITTED IN EDITABLE FORMAT. THE PROPOSED ORDER COMPLIES WITH THIS PROVISION IF IT STATES THAT THE REQUESTED RELIEF BE GRANTED OR DENIED.

This amendment was adopted on February 29, 2012 and is effective immediately.

Click here to review the red line changes to Rule 121, outlined as Rule Change 2012(03).

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Colorado Supreme Court Updates Reference in Chapter 38 of Colorado Court Rules

March 2, 2012 By Leave a Comment

The Colorado Supreme Court has amended Chapter 38 of the Colorado Court Rules, Rule 1 – Public Access to Records and Information. The minor change updates a reference to a Chief Justice Directive that was superseded in 2005. The updated rule now references CJD 05-01 in stead of the outdated CJD 98-05.

This amendment was adopted on February 29, 2012 and is effective immediately.

Click here to review the red line changes to Chapter 38, outlined as Rule Change 2012(02).

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Scope of Civil Procedure Rules Amended by the Colorado Supreme Court

February 7, 2012 By Leave a Comment

The Colorado Supreme Court has amended Rule 1 of the Colorado Rules of Civil Procedure, Scope of Rules. The change provides that:

  1. Amendments shall be effective on the date established by the Supreme Court at the time of their adoption, and
  2. Unless otherwise stated by the Supreme Court as being applicable only to actions brought after the effective date of an amendment, amendments govern all proceedings in actions brought after they take effect and all further proceedings in pending actions (except if a court determines that their application in a particular pending action would not be feasible or would work injustice, in which case the former procedure applies).

This amendment was adopted on February 1, 2012, applies retroactively to January 1, 2012, and is effective immediately.

Click here to review the red line changes to Rule 1 of the Colorado Rules of Civil Procedure, outlined as Rule Change 2012(01).

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State Judicial Continues Amending Forms to Comply with New Civil Procedure Rule Changes (Part 2)

January 24, 2012 By Leave a Comment

Colorado State Judicial is continuing to issue forms that have been amended to comply with fee changes and the new civil procedure rules adopted as part of Rule Change 2011(18), effective as of January 1, 2012. The changes are being made to time calculation requirements in the forms, which now must reflect the “rule of 7″/multiples of a week.

State Judicial is reviewing all JDF forms and instructions, however it is always the Parties’ responsibility to ensure compliance with the Supreme Court rules. It is therefore important to review the time calculation rule changes prior to filing, as many of the forms have not been reviewed and changed yet.

Below is a list of the latest forms to be amended. Earlier amendments can be found here (Part 1). Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; Word templates are forthcoming. Download the new forms from State Judicial’s individual forms pages, or below.

Adoption

  • JDF 495 – “Instructions for Second Parent Adoption” (revised 1/12)
  • JDF 497 – “Instructions for Validation of Foreign Adoption” (revised 1/12)
  • JDF 498 – “Instructions for Kinship Adoption” (revised 1/12)
  • JDF 499 – “Instructions for Custodial Adoption” (revised 1/12)
  • JDF 500 – “Instructions for Stepparent Adoption” (revised 1/12)
  • JDF 506 – “Notice of Adoption Proceeding and Summons to Respond”

Appeals

  • JDF 126 – “Instructions to File a Small Claims or County Civil Appeal” (revised 1/12)

County Civil / District Civil

  • JDF 86 – “Instructions for Issuing a Subpoena in Support of an Action Outside the State of Colorado” (revised 1/12)
  • JDF 105 – “Pattern Interrogatories Under CRCP 369(g) – Individual” (revised 1/12)
  • JDF 131 – “Instructions for an Agistor’s Lien” (revised 1/12)
  • JDF 416 – “Instructions to File a Petition to Seal Arrest & Criminal Records” (revised 1/12)
  • JDF 603 – “Instructions to Complete District Court Civil Case Cover Sheet” (revised 1/12)
  • JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 1/12)
  • JDF 620 – “Instructions for Filing a Response to a Rule 120 Notice (Foreclosure Sale)” (revised 1/12)

Criminal

  • JDF 416 – “Instructions to File a Petition to Seal Arrest & Criminal Records” (revised 1/12)
  • JDF 460I – “Instructions to Discontinue Sex Offender Registration” (revised 1/12)

Domestic/Family

  • Form 35.4 – “Pattern Interrogatories Domestic Relations” (revised 1/12)
  • Form 35.5 – “Pattern Requests for Production of Documents” (revised 1/12)
  • JDF 1103I – “Instructions for Filing a Response” (revised 1/12)
  • JDF 1415 – “Verified Motion/Stipulation to Modify Decision-Making Responsibility” (revised 1/12)
  • JDF 1418 – “Verified Motion Concerning Parenting Time Disputes” (revised 1/12)
  • JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support Orders” (revised 1/12)

Juvenile

  • JDF 476 – “Instructions to Discontinue Sex Offender Registration Juvenile” (revised 1/12)

Paternity

  • JDF 1500 – “Instructions to Establish Paternity” (revised 1/12)
  • JDF 1502 – “Summons in Paternity” (revised 1/12)
  • JDF 1513 – “Instructions to Disclaim Paternity” (revised 1/12)
  • JDF 1515 – “Summons to Disclaim Paternity” (revised 1/12)

Probate

  • JDF 782 – “Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado from Sending State” (revised 1/12)
  • JDF 786 – “Instructions to File a Petition to Transfer Adult Guardianship and/or Conservatorship from Colorado to Receiving State” (revised 1/12)
  • JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 1/12)
  • JDF 823 – “Instructions for Appointment of Guardian – Minor” (revised 1/12)
  • JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 1/12)
  • JDF 860 – “Instructions for Appointment of Conservator – Minor” (revised 1/12)
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State Judicial Begins Amending Forms to Comply with New Civil Procedure Rule Changes

January 17, 2012 By 1 Comment

Colorado State Judicial has begun to issuing forms that have been amended to comply with the new civil procedure rules adopted as part of Rule Change 2011(18), effective as of January 1, 2012. The changes are being made to time calculation requirements in the forms, which now must reflect the “rule of 7″/multiples of a week.

State Judicial is reviewing all JDF forms and instructions, however it is always the Parties’ responsibility to ensure compliance with the Supreme Court rules. It is therefore important to review the time calculation rule changes prior to filing, as many of the forms have not been reviewed and changed yet.

Below is a list of forms that have been amended so far. Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; Word templates are forthcoming. Download the new forms from State Judicial’s individual forms pages, or below.

Adoption

  • JDF 530 – “Notice & Summons for Adult Adoption” (revised 1/12)

County Civil / District Civil

  • Form 1.1 – “Summons by Publication” (revised 1/12)
  • JDF 82 – “Instructions on How to Collect a Judgment and Completing a Writ of Garnishment” (revised 1/12)
  • JDF 96 – “Instructions for Filing an Answer and/or Counterclaim” (revised 1/12)
  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED) / Evictions” (revised 1/12)
  • JDF 107 – “Order for Entry of Judgment with Issuance of Interrogatories” (revised 1/12)
  • JDF 108 – ” Pattern Interrogatories Under CRCP 369(g) – Business” (revised 1/12)
  • JDF 110 – ” Instructions for a County Court Civil Case (Money Demand)” (revised 1/12)
  • JDF 112 – “Instructions for Reviving a Judgment” (revised 1/12)
  • JDF 114 – “Notice to Show Cause for Revival of Judgment” (revised 1/12)
  • JDF 115 – ” Instructions for Replevin” (revised 1/12)
  • JDF 116 – “Verified Complaint in Replevin” (revised 1/12)
  • JDF 119 – “Prejudgment Order for Possession After Hearing” (revised 1/12)
  • JDF 122 – “Instructions for Issuance of Contempt Citation” (revised 1/12)
  • JDF 123 – “Motion and Affidavit for Citation for Contempt of Court” (revised 1/12)
  • JDF 137 – ” Instructions for Filing a Foreign Judgment” (revised 1/12)
  • JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 1/12)
  • JDF 420 – ” Instructions for filing a Change of Name – Minor” (revised 1/12)
  • JDF 432 – ” Instructions for Filing a Change of Name – Adult” (revised 1/12)
  • JDF 600 – “District Court Civil Summons” (revised 1/12)
  • JDF 605 – ” Instructions for Appealing Property Tax Assessment” (revised 1/12)
  • CRCCP 9 – “Disclosure Statement” (revised 1/12)

Criminal

  • JDF 385 – ” Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 1/12)

Domestic/Family

  • JDF 1099 – “Instructions for Filing a Dissolution of Marriage or Legal Separation if there are no Children of this Marriage or the Children are Emancipated” (revised 1/12)
  • JDF 1100 – “Instructions for Filing a Dissolution of Marriage or Legal Separation With Children” (revised 1/12)
  • JDF 1102 – “Summons for Dissolution of Marriage or Legal Separation” (revised 1/12)
  • JDF 1215 – “Evaluation of a Foreign Decree” (revised 1/12)
  • JDF 1220 – “Instructions to File a Foreign Decree” (revised 1/12)
  • JDF 1222 – “Summons for Registration of Foreign Decree” (revised 1/12)
  • JDF 1325 – “Instructions to Convert Decree of Legal Separation to Decree of Dissolution of Marriage” (revised 1/12)
  • JDF 1399 – “Instructions to File a Motion or Stipulation to Modify or Terminate Maintenance” (revised 1/12)
  • JDF 1400 – “Instructions to File a Motion to Relocate Minor Children” (revised 1/12)
  • JDF 1401 – “Motion to Modify or Terminate Maintenance” (revised 1/12)
  • JDF 1403 – “Motion to Modify Child Support” (revised 1/12)
  • JDF 1403I – “Instructions to File a Motion or Stipulation to Modify Child Support” (revised 1/12)
  • JDF 1406 – “Motion to Modify/Restrict Parenting Time” (revised 1/12)
  • JDF 1406I – “Instructions to File a Motion to Modify/Restrict Parenting Time” (revised 1/12)
  • JDF 1407 – “Motion to Relocate Minor Children” (revised 1/12)
  • JDF 1408 – “Motion to Terminate Child Support Per §14-10-122, C.R.S.” (revised 1/12)
  • JDF 1411 – “Instructions to File a Motion or Stipulation to Modify Decision-Making Responsibility” (revised 1/12)
  • JDF 1413I – “Instructions for Petition for Allocation of Parental Responsibilities” (revised 1/12)
  • JDF 1414 – “Summons to Respond to Petition for Allocation of Parental Responsibilities” (revised 1/12)
  • JDF 1418I – “Instructions to File a Motion Concerning Parenting Time Disputes” (revised 1/12)
  • JDF 1426 – “Instructions to File a Motion to Terminate Child Support” (revised 1/12)
  • JDF 1524 – “Instructions to File a Motion to Modify or Set Aside Parentage” (revised 1/12)
  • JDF 1525 – “Verified Motion to Modify or Set Aside an Order Determining Parentage” (revised 1/12)
  • JDF 1600 – “Instructions to File for a Declaration of Invalidity of Marriage (Annulment)” (revised 1/12)
  • JDF 1602 – “Summons for Declaration of Invalidity of Marriage” (revised 1/12)
  • JDF 1700 – “Instructions to File for Grandparent Visitation” (revised 1/12)
  • JDF 1701 – “Verified Pleading Affidavit for Grandparent Visitation” (revised 1/12)
  • JDF 1800 – “Instructions for Filing Motions to Enforce Orders” (revised 1/12)

Filing Fees

  • JDF 1 – “Filing Fees, Surcharges, and Costs effective on and after January 23, 2012″ (revised 1/12)

Juvenile

  • JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 1/12)

Miscellaneous

  • JDF 83 – “Notice of Withdrawal as Attorney of Record” (revised 1/12)

Probate

  • JDF 709 – “Instructions to Set a Hearing and to Complete a Notice of Hearing” (revised 1/12)
  • JDF 712 – “Notice of Non-Appearance Hearing Pursuant to C.R.P.P. 8.8″ (revised 1/12)
  • JDF 722 – “Objection to Non-Appearance Hearing” (revised 1/12)
  • JDF 963 – “Notice of Non-Appearance Hearing on Petition for Final Settlement” (revised 1/12)
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Water Court Forms Again Updated by Colorado State Judicial

January 12, 2012 By Leave a Comment

The Colorado State Judicial Branch has once again issued numerous revised forms for use in the state’s water courts, including many that were just previously updated in October. Also, a new Denver Basin Application form was issued. Practitioners should begin using the new forms immediately.

State Judicial also advises that these revised forms must be used for applications filed on and after January 1, 2012. All deadlines that occur after January 1, 2012, even if the deadlines are in existing cases, should be calculated under the amended Water Court Rules and/or amended Rules of Civil Procedure, unless there is a Water Court order to the contrary.

The updated forms are available only in Microsoft Word format; Adobe Acrobat (PDF) and Word template formats are likely forthcoming. Download the new forms from State Judicial’s individual forms pages, or below.

Water

  • JDF 296W – “Application for Water Rights (Surface)” (revised 12/11)
  • JDF 297W – “Application for Water Storage Right” (revised 12/11)
  • JDF 298W – “Application for Underground Water Right” (revised 12/11)
  • JDF 299W – “Application for Change of Water Right” (revised 12/11)
  • JDF 300W – “Application: For Finding of Diligence or To Make Absolute” (revised 12/11)
  • JDF 301W – “Application for Approval of Plan for Augmentation” (revised 12/11)
  • JDF 308W – “Denver Basin Application” (12/11)
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D. Colo. Civil Settlement Conferences No Longer Routine

January 10, 2012 By 1 Comment

In a surprise move by the Colorado federal district court last month, the customary D. Colo. magistrate judge settlement conference has essentially been cut back significantly. Apparently frustrated with the typical half-day exercise, sometimes stretching over several sessions, featuring oft-times unprepared litigants, the district judges implemented revised Local Rule 16.6, effective December 1, 2011. The revised rule and the redline edits can be viewed below.

As Magistrate Judge Boland explained at the Faculty of Federal Advocates annual meeting in mid-December, parties will now need to file a motion with their district judge, or the magistrate judge if exercising consent jurisdiction, to warrant a classic settlement conference: “It is going to be hard to obtain, and you will have to persuade a judge that you are close to settlement and need help.” In short, for those parties who historically dropped in unprepared for an early settlement meeting, or did not wish to make the first move – hoping that the magistrate judge would extract offers, uncover and convey key information, and do the heavy lifting in settlement – the game is over. As Boland elaborated, “there is a booming industry of private mediators, and there is only a small cadre who can adjudicate cases. It makes sense in a very busy court to use resources to adjudicate.”

The revised rule puts the burden on counsel to show some good reason (the rule does not require the high showing of “good cause”) to trigger the traditional magistrate-judge-led settlement conference. Though probably not very early in the litigation process, as it appears that any “early” request will qualify only for “early neutral evaluation” (“ENE” in the ADR vernacular) (Rule 16.6A), which theoretically could be quite an abbreviated effort. Thus, parties will likely need to turn to private ADR options unless they can explain in detail to the court that far reaching settlement steps have already been taken by both sides, or perhaps that one of the litigants cannot afford his or her half of the cost of a private neutral.

The revised rule is somewhat controversial. The comment period was relatively short and no comments were disclosed by the court, though several respondents went public with their opposition to the change. In addition, several senior Article III judges were concerned that the freeing up of magistrate judges from settlement work would inexorably lead to an unconstitutional expansion of adjudications by the Article I magistrate judges. Read Judge Kane’s dissent concerning revised Rule 72.2 on magistrate judge consent jurisdiction here.

It is too early to speculate about the ultimate impact of the Rule 16.6 revision. Each judge retains the right to direct the parties, presumably either by motion or sua sponte, to pursue either ENE or an “other” (undefined) ADR proceeding:  this could presumably still be the traditional magistrate judge settlement conference, or more likely a private-sector mediation, or any of a host of different ADR approaches, such as binding arbitration, so-called med/arb (mediation, followed by binding arbitration), a mini-trial, or whatever the parties might jointly consent to. Public reports indicate that the dissenting senior judges are continuing with their traditional approach, and that some other district judges have granted requests for settlement conferences since the revision was implemented in December. Nonetheless, given the new approach, it seems likely that at least a few hundred cases each year will no longer receive free settlement help from the District Court.

There were approximately 700 settlement conferences convened in the District last year. Some 25% involved employment and ERISA disputes, 10% involved personal injury matters, and single-digit percentages were taken up by, in order, contract disputes, civil rights complaints, fair debt collection work, insurance disputes, intellectual property cases, and business and product liability matters. (Notably, the vast majority of these cases settled for less than anticipated defense costs through trial).

How will these now be handled? Although the D. Colo. clerk of the court is designated to “implement, administer, oversee, and evaluate” the court’s ADR program (Rule 16.6 D), the court has quite purposefully chosen not to assemble a referral roster of potential neutrals, as it does not wish to provide an imprimatur for any private person or group. It will thus be left to the ADR professionals in the district to help litigants make their way in the new paradigm.

It is worth noting that this new approach is the way that many federal districts already operate. For those raised in this district court, it might have been assumed that all 94 districts have magistrate judge settlement conferences, but that is not the case. For instance, the Utah federal court refers out its settlement cases, as does the Southern District of Florida, for the most part.

It is possible that the district court or the ADR-designee clerk of the court might later choose to establish a more formal program, or at least a roster of eligible neutrals. The Alternative Design Resolution Act of 1998, 28 U.S.C. § 651, found that “alternative dispute resolution, when supported by the bench and bar, and utilizing properly trained neutrals in a program adequately administered by the court, has the potential to provide a variety of benefits . . . .” The Act provides that the district designee, who should be knowledgeable in ADR practices and processes, “may also be responsible for recruiting, screening, and training attorneys to serve as neutrals and arbitrators” in the court’s ADR program.

Although the private sector ADR community in Colorado is very active (the Dispute Resolution section of the CBA has over 250 members), there are only a few seasoned veterans of this District Court who are serving as neutrals locally, mainly former magistrate judges and senior federal litigators. There is no formal “federal neutral” roster, and the FFA and other similar groups may wish to establish some training programs and eligibility rosters to help fill this gap. As Vice-Chair of the DR section of the CBA, I will personally be contacting the Federal Judicial Center and the Administrative Office of the U.S. Courts to find out what assistance they may make available pursuant to the Act.

Revised Rule:

D.C.COLO.LCivR 16.6 – ALTERNATIVE DISPUTE RESOLUTION

A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. A district judge or a magistrate judge exercising consent jurisdiction may direct the parties to a suit to engage in an early neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Redline Edits:

D.C.COLO.LCivR 16.6 – A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. At any stage of the proceedings, on a A district judge’s initiative or [sic – or] a magistrate judge exercising consent jurisdiction pursuant to motion or stipulation of counsel or the pro se parties, a district judge may direct the parties to a suit to engage in an early settlement conference neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause. Unless otherwise ordered by a judicial officer, cases exempt from this rule are:

1. those in which the plaintiff is a prisoner proceeding pro se; and

2. habeas corpus actions.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Greg Whitehair, Esq., is a nationally certified mediator and arbitrator and Vice-Chair of the Dispute Resolution Section of the Colorado Bar Association. He is in the process of creating the website www.DColoADR.com to keep track of developments in the Colorado federal ADR community. He also owns IP Resolution Co. LLC, a national ADR consultancy specializing in intellectual property and high-tech commercial disputes. He can be contacted at jgw@ipresolutionco.com.
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Colorado Appellate Courts Adopt New Public Domain Case Citation Format

January 4, 2012 By Leave a Comment

The Colorado Supreme Court has adopted the proposed public domain citation format, creating a new way for parties and legal practitioners to refer to its and the Colorado Court of Appeals’ published opinions in legal briefs and other documents.

The public domain citation format will expand open access to Colorado case law by allowing practitioners and parties to cite directly to new opinions from the moment they are announced. The new format also will allow pinpoint citations by incorporating paragraph numbers. The new format became effective January 1, 2012.

Sixteen other states, including New Mexico, Wyoming and Utah, already have adopted the same format, which was recommended by the American Association of Law Librarians in the mid-1990s and is endorsed by the American Bar Association.

The courts already provide online access to published opinions free of charge on the Judicial Branch web site. Before implementation of the public domain citation format, opinions issued by Colorado’s two appellate courts were “slip opinions” which lacked a formal citation format until they were published in print in the Pacific Reporter.

“The purpose of the public domain citation format is to make it easier for practitioners and self-represented parties who lack the resources to access an electronic research database or the printed volumes of the Pacific Reporter to locate Colorado case law and to cite to that case law in all levels of Colorado’s justice system, whether in the trial or appellate courts,” Chief Justice Michael L. Bender said.

The Supreme Court adopted the new citation format after receiving public comment. The new format is implemented by the new Chief Justice Directive 12-01.

Practitioners and parties will be permitted to use the public domain citation format or to cite to the Pacific Reporter, and they will not have to provide parallel citations in either format.

The new citation format is part of a broader effort by the Colorado Supreme Court to improve access to justice by integrating court resources and electronic technology.

“Our goal is to eliminate the barriers that keep people from coming to court to exercise their rights and that prevent the courts from delivering fair and just outcomes,” Chief Justice Bender said. “Having a public domain citation format, though implicating a seemingly technical aspect of motions practice and brief writing, is actually a very important step in achieving that goal.”

A citation to an appellate opinion in the Pacific Reporter could look like this:

Smith v. Jones, 45 P.3d 1237, 1254 (Colo. 2012).

Under the new format, a citation to a Supreme Court opinion would look like this:

Smith v. Jones, 2012 CO 22, ¶¶ 44-45.

And a citation to a Court of Appeals opinion under the new format would look like this:

Jones v. Smith, 2012 COA 35, ¶¶ 44-45.

“CO” means Supreme Court and “COA” means Court of Appeals. The “22” in the first example and the “35” in the second example mean those opinions are, respectively, the 22nd and the 35thissued by each court in 2012. Both citations point to the opinion’s 44th and 45th paragraphs.

The public domain citation system will be overseen by Christopher T. Ryan, Clerk of Court for both the Supreme Court and Court of Appeals. Upon announcement, each opinion selected for publication will be assigned a public domain citation and internal paragraph numbers.

Opinions that are not designated for official publication pursuant to C.A.R. 35(f) will remain unpublished and will not be assigned a public domain citation.

Click here to read the announcement from State Judicial.

Click here to read Chief Justice Directive 12-01 and more examples of proper Bluebook citation.

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Majority of Colorado Procedure Rules Amended to Adopt “Rule of 7″ Time Calculations

December 15, 2011 By 4 Comments

The Colorado Supreme Court has made significant changes across the board for procedural time calculations. The amendments were made to the:

  • Colorado Rules of Civil Procedure
  • Colorado Appellate Rules
  • Colorado Rules of Probate Procedure
  • Colorado Rules of Criminal Procedure
  • Colorado Rules of Juvenile Procedure
  • Colorado Municipal Court Rules of Procedure
  • Colorado Rules for Magistrates

The changes conform these rules to the “rule of 7″ for procedural time periods. This change, adopting multiples of a week, will help eliminate problems that arise when a deadline falls on a weekend; deadlines can no longer fall on a weekend.

Additionally, the changes:

  • Eliminate the 3-day mail rule.
  • Add the requirement that motions challenging expert testimony pursuant to C.R.E. 702 must be filed no later than 70 days (10 weeks) before the trial.
  • Clarify that the “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
  • Repeal provisions that conflict with the “rule of 7″ standard.

The amendments are compiled in two massive rule changes, which provide red line edits:

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