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New IAALS Study Asks and Answers “What Has Happened with Rule 16.1 in Colorado?”

December 11, 2012 by Leave a Comment

IAALS has just released a Rule One Initiative research report entitled Measuring Rule 16.1: Colorado’s Simplified Procedure Experiment. In 2004, the Colorado Supreme Court put in place Rule 16.1, a voluntary pretrial process for smaller dollar-volume civil cases, with the hope of providing a more efficient path to resolution. This new report sets forth the results of an empirical study of Rule 16.1, including its role and impact. With growing interest in streamlined pretrial procedures, case differentiation, and optional processes, we felt it was important to examine one such rule that has existed for some time. Through this study, IAALS attempts to answer the question: What has happened with Rule 16.1 in Colorado?

Rule 16.1 is the default pretrial procedure in Colorado district court for typical types of civil actions with less than $100,000 in controversy between any two parties, although any party may “opt out” and elect to use the standard pretrial process instead. This “simplified” procedure generally replaces discovery with mandated disclosures, along with assurances of a faster route to trial. Recovery under Rule 16.1, including attorney fees but excluding costs, cannot exceed the $100,000 limit.

The study documented the highest rate of Rule 16.1 cases in consumer credit collection actions (95%) and other straightforward contract actions in which damages are fixed or liquidated. In 70% of cases proceeding under Rule 16.1, there is no appearance by any defendant, and more than half resolve by entry of default judgment. Overall, the perception among interviewed attorneys and judges is that the cap on damages and inflexible limits on discovery have discouraged attorneys from using the procedure. In other words, given the choice of opting out, many attorneys do just that.

In the 30% of Rule 16.1 cases that were contested and therefore invoked the provisions of the procedure, there is mixed evidence on the rule’s impact. With respect to time to disposition, the county in which the case is filed appears to play a larger role than Rule 16.1. In addition, Rule 16.1 cases have not been shown to have a higher trial rate. However, Rule 16.1 is associated with a decrease in the number of motions filed. It is not possible to know whether the results would have been different if the rule was more frequently applied in actively litigated cases.

Colorado’s experience may contain insight for other jurisdictions as they experiment with formulating sets of rules to more effectively secure the “just, speedy, and inexpensive” resolution of civil cases. Click here to read the full report.

Corina Gerety is Manager of Research for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog, on November 28, 2012.

The opinions and views expressed by Featured Bloggers on 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.

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

December 4, 2012 by Leave a Comment

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

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

The NCSC studied SSE programs that had been implemented in six state courts. “The most surprising thing about those programs,” explained Paula Hannaford-Agor, who directed the research project, “was how creatively they were designed to address very different local conditions that were obstructing access to trial. Although they all shared the same basic objectives, the programmatic details differed considerably. It was those details, which derived from negotiations among key stakeholders in each program, that really contributed to their success.”

A Return to Trials would not have been possible without jurisdictions, like California, that have already begun to implement SSE programs, but it was written for jurisdictions that have not yet taken that step. Many lawyers and judges in those jurisdictions have been eager to use the report to make SSE programs a reality in their courts.

“Short, summary and expedited jury trials benefit lawyers, courts, jurors, and—most importantly—litigants,” said Michael Maguire, House Counsel for State Farm in Orange County, California, and member of ABOTA’s National Board of Directors. “These programs improve access to justice by cutting down the expense and delay of litigation. Significantly, trial results are the same. In New York, South Carolina, Nevada and California, the ratio of plaintiff to defense verdicts is the same as in longer, more expensive traditional trials.”

“We need solutions to the backlogs and delays that are dominating the civil justice system,” said Thomas Fain, a partner at the law firm of Fain Anderson VanDerhoef in Seattle, Washington. “Because the work of these three organizations transcends state lines, this report is positioned to guide our consideration of a short, summary, and expedited program here in Washington.”

Alli Gerkman is Director of Communications for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog, on October 30, 2012.

The opinions and views expressed by Featured Bloggers on 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.

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“Know Your Judge” Website a Tool for Colorado Voters in Judicial Races

October 31, 2012 by 2 Comments

This November, in addition to executive and legislative candidates, Colorado voters will be deciding whether or not to retain Colorado judges. Under Colorado’s system for selecting and retaining judges, all judges who will appear on the ballot must undergo a performance evaluation, the results of which are provided to the public as a tool for casting an informed retention vote. A website—www.knowyourjudge.com—is helping voters locate this information for the judges who will appear on their ballot.

Know Your Judge directs voters to the information provided by the Colorado Office of Judicial Performance Evaluation, including evaluation results for judges in each county, and court of appeals judges and supreme court justices who appear on ballots statewide. In addition to the evaluation results, which are presented in both narrative and detailed form, there is a recommendation of “retain,” “do not retain,” or “no opinion” for each evaluated judge based on that judge’s performance on the bench. These recommendations are carefully formulated by the Colorado Commissions on Judicial Performance, based on comprehensive data collected as part of the evaluation process.

Official judicial performance evaluation programs have been established in 17 states and the District of Columbia, and in seven of these states performance evaluation results are provided to voters for use in retention elections. The broad-based and objective performance information collected by these programs is particularly important given the growing number of anti-retention efforts against state court judges on the basis of individual rulings with which special interests may disagree. In both Iowa and Florida this election cycle, state supreme court justices standing for retention are facing anti-retention campaigns on the basis of a particular court decision. In Iowa, a similar effort in 2010 was successful in unseating the three supreme court justices standing for retention that year. Neither Iowa nor Florida has an official JPE program for the benefit of voters.

The Know Your Judge website was developed in 2010 to help draw attention to this resource for voters, and to provide Colorado citizens with information about how their judges are selected, evaluated, and retained. In a 2010 post-election poll, judicial performance evaluations were the most commonly mentioned source of information about Colorado judges, and more than 4 in 10 Coloradoans who visited the Know Your Judge website found it helpful in making their voting decisions.

The effort is sponsored by the Colorado Bar Association, in partnership with the Colorado Judicial Institute, the League of Women Voters® of Colorado Education Fund, and IAALS, the Institute for the Advancement of the American Legal System at the University of Denver.

Alli Gerkman is Director of Communications for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog.

The opinions and views expressed by Featured Bloggers on 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.

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Rebecca Love Kourlis is 2012 Recipient of John Marshall Award

May 17, 2012 by 1 Comment

On Thursday, May 17, 2012, the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver announced that its Executive Director, Rebecca Love Kourlis, has been named the recipient of the prestigious 2012 John Marshall Award, presented by the American Bar Association Justice Center. Kourlis will formally accept the award in Chicago in August.

The ABA Justice Center established the John Marshall Award to recognize individuals who are dedicated to the improvement of the administration of justice. Recipients are chosen based on their work to promote justice system reform and public awareness about the justice system. Previous recipients include Justice Sandra Day O’Connor (AZ), Justice Anthony Kennedy (U. S. Supreme Court), Chief Judge Judith S. Kaye (NY), Senator Howell Heflin (AL), and Governor Tom Ridge (PA).

Kourlis is a graduate of Stanford University and Stanford University School of Law. She served as a trial court judge for seven years and was appointed to the Colorado Supreme Court in 1995 where she served there for elevent years. She opened IAALS in 2006.

IAALS is a national, independent research center at the University of Denver dedicated to continuous improvement of the civil justice system. IAALS envisions a civil justice system that is accessible, efficient and accountable to the litigants it was designed to serve.

Kourlis has received numerous honors, including the U.S. Chamber of Commerce Legal Reform Organization of the Year Award (2007) and the ABA Judicial Division Robert B. Yegge Award for Outstanding Contribution in the Field of Judicial Administration (2009). She is a Fellow of the Colorado Bar and American Bar Foundations. In 2010, she and husband Tom were named Citizens of the West by the National Western Stock Show.

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Regulation Counsel Says Law Students Need More Exposure to Professionalism

April 18, 2012 by Leave a Comment

This post originally appeared on the Educating Tomorrow’s Lawyers blog. Educating Tomorrow’s Lawyers is an initiative of the Institute for the Advancement of the American Legal System (IAALS) that leverages the Carnegie Model and the work of law schools and professors committed to legal education reform to align legal education with the needs of an evolving profession by providing a supported platform for shared learning, experimentation, ongoing measurement and collective implementation.

We recently sat down to talk with John Gleason. As Regulation Counsel for the Colorado Supreme Court, he directs the office of the Court responsible for lawyer admissions, registration, regulation, and client protection. In 2010, Gleason was appointed by the Arizona Supreme Court to investigate and prosecute Andrew Thomas, the former Maricopa County Attorney—a prosecution that last week ended in the disbarment of Thomas and one of his lieutenants, and the suspension of another attorney in Thomas’ office.

Gleason often meets lawyers when they are at their most vulnerable—under investigation for misconduct—and he believes new lawyers need more guidance on professional issues. Recent graduates, he says, are often referred to his office for minor misconduct issues. “There are an enormous number of issues that are not covered in law school. In fact, probably most issues related to professionalism are not covered in law school.”

Hear more from John Gleason below or click here to view the rest of his interview.

Alli Gerkman is Online Content Manager for IAALS, where she manages, edits, and creates content for IAALS and Educating Tomorrow’s Lawyers.
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Colorado Civil Access Pilot Project: Changes to Included/Excluded Actions

October 18, 2011 by Leave a Comment

The Colorado Supreme Court has amended the Chief Justice Directive that outlines the implementation of the Civil Access Pilot Project. As of October 2011, an amended Appendix A has been included in CJD 11-02. The Appendix describes the types of cases that will be included in the program, and those that will be excluded.

The revised Chief Justice Directive with the updated list of included and excluded actions can be found here.

The Civil Access Pilot Project is an attempt by State Judicial to revamp the discovery process and reduce the expense of civil litigation in certain business actions. The Colorado Rules of Civil Procedure concerning pleading, discovery, and trial management have been modified for the cases falling within the realm of the project.

The pilot project is scheduled to last two years, unless extended by the Court.

CJD 11-02 – “Adopting Pilot Rules for Certain District Court Civil Cases”

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Rebecca Love Kourlis to Premiere New Book at Signing Event; Former Colorado Supreme Court Justice Discusses Court Reform

October 7, 2011 by Leave a Comment

Rebecca Love Kourlis, former Justice of the Colorado Supreme Court and Executive Director of the Institute for the Advancement of the American Legal System, will discuss and sign Rebuilding Justice, the new book she co-authored with Dirk Olin. The event will take place at the Tattered Cover Book Store (Colfax) in Denver on Thursday, November 17, 2011 from 7:30 pm to 9:30 pm.

Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care tells the story of a civil justice system that has become alarmingly expensive, politicized, and time-consuming—so much so that it no longer meets the legitimate needs of the people it was created to serve.

Rebuilding Justice gives citizens and civil servants alike permission (and a roadmap) to write a new ending to the story—one that employs practical and empowering solutions to improve the efficiency, accessibility, and integrity of America’s civil courts.

The foreword, written by former United States Supreme Court Justice Sandra Day O’Connor, can be read below, along with the Table of Contents and introductory material. Purchase the book at the event or click here to learn more and purchase online.

Preview: Rebuilding Justice – Civil Courts in Jeopardy and Why You Should Care

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The Educating Tomorrow’s Lawyers Project at IAALS at DU

August 31, 2011 by 1 Comment

Many attorneys in practice have wished that their newly hired law school graduates had more training in what attorneys actually do. Traditionally, law school has offered courses that were mostly grounded in the major doctrinal areas of law. While this foundation is certainly important, there has long been a gap between law school and the profession.  But this is starting to change.

There has been a broad ranging discussion going on for several years in the legal academy about how to provide a more balanced curriculum to our students.  This discussion – which had been simmering for many years – received an impetus from a critical report from The Carnegie Foundation for the Advancement of Teaching in 2007.  The Carnegie Report was soon followed by the econalypse of 2008, which has had a profound impact on the economics of the legal profession.

The Carnegie Report mostly commended legal education for the work it does in the first year of law school, noting that the critical analytical skill lawyers must have is formed there.  But when law school continues to use the “doctrine focused” method of teaching in the second and third year it loses the opportunity to teach critical lawyering skills and to help students form their professional identity as ethical lawyers.  The Report advocates a movement toward teaching what it calls the three “apprenticeships” – analysis, skills, and identity – in an integrated fashion, i.e., all together in each course.

When I graduated from law school, I found myself less prepared than I expected to be for life in a large litigation firm in New York City.  I certainly knew the basic doctrines and rules that one learns in Civil Procedure, but I had never drafted a set of interrogatories, much less answered a set or handled a document review.  I learned all of that at the expense of the firm’s clients, which was a fairly common practice at the time.  Today, clients have less tolerance for paying for the training of first year associates.

When I moved to the Rothgerber firm Denver in 1990, I contacted the University of Denver’s law school to see if they would be interested in having someone teach an advanced course in Discovery law.  It turned out they did, and I served as an adjunct professor for six years.  In those years, I developed a course that was a “Carnegie integrated course” before such a thing existed.  It integrated the doctrine, skills, and ethical identity apprenticeships in myriad ways throughout the course.

Since I came to teach at DU full-time eight years ago, I have continued to refine the course, and I have now it taught almost a dozen times.  I also have recently authored a hybrid textbook (with print and online components) to support this different method of teaching.

In the course, students learn the Federal Rules of Civil Procedure that govern civil discovery law, and we study important cases that interpret those rules.  Throughout, the students are not just learning but also doing.  That is, they are working on a litigation, assigned to represent a party, and assigned to an opposing counsel (who is another student in the course).  In the mock litigation, the students are only given part of the relevant information, so at least they can get started.  The rest of the semester, they use the discovery rules to learn the rest of what they need to know – just like in a real litigation.  So, we learn about Rule 33 and how it operates in practice, and then the students prepare a set of interrogatories and serve it on their opposing counsel.  In the next class, we learn about answering interrogatories (which is mostly about privileges and objections), and then the students answer the set that they received from their opposing counsel.  And so on throughout the semester.  The students also conduct a deposition, and at the end of the course, they settle the case and prepare a settlement agreement.  In the deposition, student court reporters from the Denver Academy of Court Reporting take down the testimony and produce a transcript for each student to review.  Students take, defend and act as a witness in the deposition; that way they experience it from all vantage points.

I created this course so that at least those students who had taken it would never enter their first legal job (as I did) with little idea of how the rules of civil procedure actually apply in practice.  I discovered to my immense joy that it is massively more fun to teach in this way.  And students are highly engaged: if you have heard stories about students tuning out in class to check their email or Facebook page (or perhaps you did that occasionally in law school?), I can tell you that does not happen in this class – student engagement is very high.  A teacher’s greatest joy is to teach engaged and motivated students.

While there are pockets of this kind of teaching going on around the country – more commonly in the last few years – it is still fairly isolated.  A new initiative of the Institute for the Advancement of the American Legal System at DU – it is called “Educating Tomorrow’s Lawyers” – is aimed at encouraging this kind of integrated teaching at law schools across the country.  It will, over time, contain teaching portfolios from many law professors who teach in this “Carnegie integrated” way, so that other professors can learn and incorporate these techniques as they see fit in their own courses.  There are three teaching portfolios already posted on its new website, including one explaining the Discovery course I teach in more detail.  If you would like to know more about this effort, please visit the website – http://educatingtomorrowslawyers.du.edu

© 2011 David Thomson – all rights reserved

David Thomson is a Professor and Director of the Lawyering Process Program at the University of Denver Sturm College of Law. David is well known for his expertise in using technology in teaching, and has presented widely across the country on this topic over the last few years. He is the author of Law School 2.0: Legal Education for a Digital Age (LexisNexis/Matthew Bender 2009). David’s Discovery Practicum course is one of the three innovative courses featured by IAALS‘ Educating Tomorrow’s Lawyers project at DU.
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From Baldwin to Breckenridge: The Colorado Family Law Institute Is Over, But the Revolution Has Only Just Begun

August 26, 2011 by Leave a Comment

On August 11, 2011, Alec Baldwin sparked the momentum needed for revolutionary change within the family court system. He spoke frankly, sometimes emotionally, and sometimes with his wicked sense of humor, about the current family law system and the damage that it can cause. He very pointedly stated that he holds judges responsible – for issuing timely orders that protect parent-child relationships, for enforcing those orders and conveying the absolute expectation of compliance, and for reigning in the lawyers who can add fuel to the already present fire of the litigants.

He challenged the room to respect the parties, the loss of a marriage, and the broken family they are experiencing. He endorsed collaborative law as one of the answers, if not the answer, for dissolving marital relationships respectfully and with dignity. The focus should always be on making a successful transition to the new form of family the parties assume after ending a marriage. He reminded all in attendance that families leave the system, attorneys, and judges behind, but continue to deal with the effects of the process long after, especially when attempting to raise children together.

Alec Baldwin with Brenda Storey, Chair of the Family Law Institute

As the event ended, members of the audience expressed utter enjoyment at being part of the event and the rejuvenation and hope they felt as a player within the divorce process. Several lingered after and shared their own similar experiences within the system. Even a judge in attendance chatted with Mr. Baldwin for a time about her observations on divorce law and her frustrations with what it has become.

The fundraiser component of the evening, a new component of the Institute, was also a huge success. Thousands of dollars were raised for the Legal Aid Foundation of Colorado.

As the lights went out on the event that night, the energy for change remained lit.

That momentum continued into the next day. As attendees arrived in Breckenridge, that same energy from the previous night was in the air. People talked excitedly about the successful kick-off and the message delivered by Mr. Baldwin. Attorneys shared stories of their brush with the celebrity, as well as continued their conversations about their own similar experiences within a flawed system that has left clients, and themselves to an extent, bruised and damaged.

The pre-conference, also new to the Institute, had close to 100 participants. The Institute itself welcomed 446 attendees. Mr. Baldwin truly delivered the catalyst effect desired! The “Revolution” theme was enhanced by the classic and iconic Beatles song playing at the start of sessions, and numerous social opportunities helped further open attendees’ minds to the idea of change. The sessions offered at the Institute delivered the promised education and entertainment, and challenged everyone there to join the revolution to reform the practice of family law.

Pam Gagel, with the Institute for the Advancement of the American Legal System, shared solutions from other states, and even other countries. She offered suggestions to streamline the process and requested forward-thinking involvement by the bench and bar.

The Plan B Committee had a captive audience who listened intently to and contributed additional ideas about a rather innovative alternative: taking divorce out of the court system and providing a team approach with triage treatment and education.

At the “Open Memo to the Bench” session, Jim Miller took to heart Mr. Baldwin’s criticisms of the judiciary and opened the topic to further discussion about early judicial intervention, enforcement of orders, and judicial education. Dr. Dana Cogan delivered an inspiring lunchtime presentation on “Change, Life’s One Constant,” and Gina Weitzenkorn, the 2011 Family Law Icon Award recipient, challenged the room to join the revolution by taking more pro bono cases. Eric Six and Bill Vincent, both CPAs, presented on avoiding the battle of the experts. Terri Harrington finished off Saturday with a presentation on “Lawyers as Peacemakers” that had attendees talking well into the following cocktail hour about what events changed them for the better along their careers in the divorce system.

The Institute had wonderful sessions on innovative ways of looking at substantive law and family law practice. Other topics included discussions of when 50-50 parenting time is not the best solution, how to get around the double-dip case law, and what HIPAA is not, among many others. Attendees were provided with written materials, expert referrals, and inspiration to approach their cases, arguments, practice, and careers in a different light.

I have to say, the Institute, from kick-off to conclusion, was everything I had hoped it would be and more.

On August 14, the slow, acoustic version of “Revolution” played and the Institute came to a close. But the revolution had only just begun. Plan B is becoming a reality, moving into the pilot project phase. Jim Miller is generating an actual “Open Memo to the Bench” to be disseminated to the judiciary, reflecting the input provided during his session. Providing more family-law-focused training for judicial officers is a priority, with State Judicial and CBA-CLE joining forces. The Institute for the Advancement of the American Legal System has been granted new access to court cases to conduct research and facilitate further change.

And lastly, the Family Law Section is rolling out a new webpage that links its members to all of the judicial districts and has started a two-year process of implementing statewide the family court “Best Practices,” as identified by the Family Law Task Force. The Section is focusing on being an even bigger resource for its members – we hope you join us in making our vision for the future a reality!

Thomas Jefferson once said, “Every generation needs a new revolution.” This revolution has truly only begun and I look forward to reporting on our progress and success!

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Malia Reddick: Colorado Legal Community Invited to Participate in National Judicial Performance Evaluation Conference on August 11-12

August 2, 2011 by Leave a Comment

When the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver launched in 2006, judicial performance evaluation was among its first initiatives.

This month, IAALS will continue its commitment to improving existing processes for evaluating judicial performance and informing voters of the evaluation results by hosting a conference that will address evaluation issues specifically at the appellate level… and we hope you can join us.

On August 11 and 12, judges, journalists, noted scholars and others from around the country will gather in Denver to consider how we might improve the evaluation process for appellate judges.

The conference features a presentation by Chief Justice Mark Cady of the Iowa Supreme Court, as well as panels on:

  • What makes a good appellate judge?
  • Is it possible to capture these qualities in an evaluation process?
  • Are the existing methods of evaluation working, and if not, what could be improved?
  • Not everyone agrees on the best evaluation process, so what are the areas of disagreement and alignment among judges, activists, journalists and scholars?

When: August 11-12, 2011

Where: Sturm Hall, University of Denver, (optional August 11 dinner will be held at Loews Denver Hotel)

Click here to learn more about the conference or to register now.

Malia Reddick is Director of Judicial Programs at the Institute for the Advancement of the American Legal System at the University of Denver. Sign up to receive her monthly email newsletter, Selection Snapshots, which surveys judicial selection news from around the country.
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Pilot Rules for Certain District Court Civil Cases Adopted by Colorado Supreme Court

July 27, 2011 by Leave a Comment

Following the Colorado Supreme Court’s approval of the Civil Access Pilot Project, the Court has issued a new Chief Justice Directive to implement the rules outlined by the project. These revised rules are an attempt by the Court to study if the control of the discovery process reduces the expense of civil litigation in certain business actions.

In order for the project to be implemented successfully, the Court has determined that the Colorado Rules of Civil Procedure concerning the pleading, discovery, and trial management of certain cases must be modified.

All of the new rules are outlined in CJD 11-02.

The rules contained therein are effective January 1, 2012 and will be applicable to cases filed on or after that date. The rules are adopted for use in the designated cases in the First, Second, Seventeenth, Eighteenth, and Twentieth Judicial Districts.

The pilot project is scheduled to last two years and apply to all applicable cases filed in the pilot districts up to December 31, 2013 or until further order of the court.

The effect of the pilot project will be studied by the Institute for the Advancement of the
American Legal System (IAALS), working at the request of the Court. IAALS will issue a report
on the effect of the project upon the conclusion of the two year period.

CJD 11-02 – “Adopting Pilot Rules for Certain District Court Civil Cases”

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