February 4, 2012

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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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State Judicial Issues Several New and Revised Forms for the Civil Access Pilot Project

December 23, 2011 By Leave a Comment

The Colorado State Judicial Branch has revised a number of forms to be applicable in litigation governed by the new Civil Access Pilot Project. The revised forms can be used in Pilot Project cases and those not governed by the new rules. State Judicial also issued two new forms specifically applicable to Pilot Project cases. Practitioners should begin using the new forms immediately.

All forms are available in Adobe Acrobat (PDF) and/or Microsoft Word formats. Download the new forms from State Judicial’s Civil Rules Pilot Project page, or below.

Pilot Project

  • Civil Access Pilot Project Summons (12/11)
  • JDF 601 – “District Court Civil Cover Sheet” (revised 12/11)
  • JDF 603 – “Instructions to Complete District Court Civil Case Cover Sheet” (revised 12/11)
  • JDF 604 – “Notice and Order to File JDF 601 Case Cover Sheet” (revised 12/11)
  • JDF 634 – “Civil Access Pilot Project Initial Case Management Conference Joint Report of the Parties (1/12)
  • JDF 635– “Civil Access Pilot Project Form for Disclosure of Expert Witnesses” (1/12)

Click here to review these forms and other resources pertaining to the Civil Access Pilot Project.

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

December 15, 2011 By 3 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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Colorado Court of Appeals: California Jury Findings Decided Issues Identical to Present Case; No Causal Relationship Between Alleged Misrepresentation and Losing Money on Contract

November 28, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Bristol Bay Productions, LLC v. Lampack on November 23, 2011.

C.R.C.P. 12(b)(5) Dismissal Based on Issue Preclusion.

Bristol Bay Productions , LLC (Bristol Bay) appealed the district court’s judgment dismissing its tort action against defendants Peter Lampack and Peter Lampack Agency, Inc. (collectively, Lampack), Simon & Schuster, Inc., and Penguin Group USA, Inc. (Penguin). The judgment was affirmed.

Bristol Bay was the producer of a movie based on one of Clive Cussler’s “Dark Pit” adventure novels. Lampack was Cussler’s literary agent, and Simon & Schuster and Penguin were two of Cussler’s publishers.

Bristol Bay and Cussler sued each other in California over the failure to create a commercially successful movie. During discovery, Bristol Bay learned that Cussler had sold 40 million books, not the 100 million Bristol Bay had been led to believe. Bristol Bay added claims of deceit against Cussler, alleging losses in excess of $50 million.

Several weeks later, Bristol Bay filed this action in Colorado based on nearly identical allegations as in the California case. Bristol Bay later amended the complaint to add Simon & Schuster and Penguin, based on allegations that they misrepresented Cussler’s readership, as well as the number of books in print and the number of books sold.

The California jury returned verdicts in favor of Cussler on Bristol Bay’s deceit claims. The Colorado court stayed its proceedings pending an appeal of the California case. The California Court of Appeals affirmed the judgment and the Colorado court granted, on issue preclusion grounds, defendants’ C.R.C.P. 12(b)(5) motion to dismiss the complaint. Bristol Bay appealed and the Colorado Court or Appeals affirmed.

Issue preclusion bars relitigation of a legal or factual matter already decided in a prior proceeding when four conditions are met. In this case, only one element was in question; namely, whether the issue sought to be precluded was identical to an issue actually and necessarily determined in a prior proceeding. Bristol Bay argued that the district court erred in determining that the California jury’s findings on misrepresentation, reliance, and causation precluded it from proceeding in Colorado against Lampack and the publishers.

The Colorado Court of Appeals found that the California jury’s findings precluded Bristol Bay from proceeding against Lampack because it decided, adversely to Bristol Bay, three issues identical to those present in the Colorado case. The Court further held that because the jury found there was no causal relationship between the alleged misrepresentation and Bristol Bay’s losing money on the contract and the movie, Bristol Bay was precluded from arguing that reliance on anyone’s misrepresentation about the number of Cussler’s books sold caused its losses.

Bristol Bay also argued that the case could only have been disposed of in the manner chosen as a summary judgment motion, not for failure to state a claim. The Court disagreed. The Court noted that affirmative defenses may be disposed of through a C.R.C.P. 12(b)(5) motion when the allegations of the complaint reveal that the claim is, as a matter of law, barred, or where no prejudice results to the plaintiff. Bristol Bay argued that it was prejudiced under Rule 12(b)(5) because attorney fees must be awarded when tort cases are so dismissed. The Court was not persuaded. The judgment was affirmed and the case was remanded for awards of appellate attorney fees to Lampack and the publishers.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 23, 2011, can be found here.

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Colorado Court of Appeals: Obtaining Medical Record Copies Is Obtaining Intangible Information Contained Within by Purchasing the Services Necessary to Retrieve and Copy Them

November 28, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Treece, Alfrey, Musat & Bosworth, PC v. Dep’t of Finance, City and County of Denver on November 23, 2011.

Tax Dispute—Use Tax on Costs of Obtaining Medical Records for Litigation.

The Department of Finance of the City and County of Denver (Department) appealed the district court’s judgment reversing a hearing officer’s determination that Treece, Alfrey, Musat & Bosworth, P.C. (law firm) owed use tax on the cost of obtaining copies of medical records from health-care providers for the law firm’s use in litigation. The judgment was affirmed.

The law firm represents clients in civil litigation. As part of its practice, it often must acquire photocopies of medical records. Generally, the law firm receives authorization to release records from the opposing party or its own client, provides the authorization to pertinent health-care providers, receives paper copies, and pays an invoice generated by the health-care provider. The law firm then receives reimbursement from an insurer of its client or directly from the client. The health-care provider does not charge sales tax when providing the records and the law firm does not pay sales tax, nor does it charge a sales tax to its client or the insurer. The records, kept in the law firm’s files, are owned by the law firm, the insurer, or the individual client.

The Department conducted a routine tax audit of the law firm from January 1, 2006 through December 31, 2008 and assessed use tax, penalties, and interest on the law firm’s costs paid to obtain medical records. The law firm contested the assessment and the hearing officer upheld it, concluding that the law firm “purchased tangible personal property for use in Denver in connection with its business and did not pay sales tax.”

The law firm appealed to the district court, which found an abuse of discretion and reversed the hearing officer’s judgment. The Department argued that the hearing officer’s decision was correct, and appealed. The Court of Appeals disagreed and affirmed the trial court’s judgment, albeit on different grounds.

The Court looked to the applicable tax provision, Denver Revised Municipal Code § 53-96, which essentially requires businesses that purchase tangible personal property in Denver for use and do not pay sales tax to pay use tax. The parties agreed that the physical documents obtained from health-care providers constituted tangible personal property. The parties disagreed on three points: (1) whether the copies were “sold” or “purchased at retail” because hospitals and doctors are not in the business of selling medical records at retail; (2) whether the photocopying of records for litigation purposes is a retail sale for consideration because they must be furnished without charge on presentation of authorization and they are not sold; and (3) whether the charge for photocopying reflects provision of a service versus a product.

The Court examined the nature of medical records. It found that a patient or authorized representative who seeks copies of a medical record receives, on payment of reasonable costs, both an item of tangible personal property (the documents) and the services or rights that are other than tangible (the labor involved in physical retrieval and copying, as well as the information in the record).

Neither statutory provisions nor the record allowed for a meaningful separation of the cost of providing the services and intangible property from the cost of providing the actual paper document. The Court therefore applied the “true object” test in which the Court analyzes the “totality of the circumstances” to determine whether the true object, dominant purpose, or essence of the transaction is the acquisition of tangible personal property or the acquisition of intangible services. The Court concluded the obtaining of medical record photocopies is not a transaction for the furnishing of tangible personal property, but that the true object is obtaining intangible information contained within the medical records by purchasing the services necessary to retrieve and copy them.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 23, 2011, can be found here.

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[UPDATED] Piloting Change: A Brief Overview of the Colorado Civil Access Pilot Project Rules

November 17, 2011 By 1 Comment

Editor’s Note: CBA-CLE will be holding a program next month highlighting the Civil Access Pilot Project, which will help practitioners understand the practical information they need to know once the rules go into effect. The rules have been changed significantly, and failing to navigate them correctly can be detrimental to clients and cases. Registration information is provided below.

By Jessica L. Fuller and Tamara F. Goodlette

In Chief Justice Directive 11-02, the Colorado Supreme Court approved a new set of civil procedure rules known as the Colorado Civil Access Pilot Project. The goals of the Pilot Project are to increase access to the courts and reduce the expense of civil litigation by identifying and narrowing disputed issues at the earliest stage of litigation; requiring ongoing active case management by a single judge; and keeping litigation costs proportionate to the issues being litigated through controlled discovery and other means.

The Pilot Project makes significant changes to the Colorado Rules of Civil Procedure for certain types of business cases in specified judicial districts, which will dramatically affect the way civil cases are litigated. Below is a brief overview of the highlights of the Pilot Project Rules (PPRs).

Not all of the PPRs are addressed below and they may continue to be amended through 2011. To review the full set of the most recent version of the PPRs, visit www.courts.state.co.us/Courts/Supreme_Court/Directives and click on Chief Justice Directive 11-02, “Civil Litigation in Business Actions.”[1]

Introduction to the Pilot Project

When do the PPRs take effect?

  • The PPRs are effective Jan. 1 for certain types of cases filed on or after that date, and will be in effect for applicable cases filed in the next two years.

What happens at the conclusion of the two years?

  • During the two-year period when the PPRs are in effect, IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, will collect data to measure the effects of the procedural changes. The study results will be used to determine whether to make future amendments to the Colorado Rules of Civil Procedure.

Where do the Pilot Project Rules apply?

  • For designated cases in the First Judicial District (Jefferson and Gilpin counties), Second Judicial District (Denver County), Seventeenth Judicial District (Adams County), and the Eighteenth Judicial District (Arapahoe County).

What kinds of cases are governed by the PPRs?

  • “Inclusion in the pilot project will be determined based on the contents of the complaint at the commencement of the action,” according to PPR 1.1.
  • The PPRs will apply to cases that are predominately “business actions” as defined in Amended Appendix A of CJD 11-02. Amended Appendix A lists various types of “included actions” and “excluded actions.” Litigators in the specified judicial districts should refer to Amended Appendix A to determine whether a case is subject to the PPRs.

Do the Colorado Rules of Civil Procedure still apply?

  • Yes. The PPRs are not a complete set of rules and the C.R.C.P. will continue to govern, except where there is an inconsistency, in which case the PPRs will control. (See PPR 1.2.)

Are the PPRs optional?

  • No. In fact, the court may impose sanctions for any failure to timely or completely comply with the PPRs. (See PPR 11.1.)
Overview of Central Provisions of the Pilot Project Rules

Proportionality is the Buzz Word

  • All aspects of the case shall be addressed by the court and the parties to assure the process and costs are proportionate to the needs of the case. The proportionality factors include the “amount in controversy, and complexity and importance of the issues at stake in the litigation. …This proportionality rule shall shape the process of the case in order to achieve a just, timely, efficient, and cost effective determination of all actions.” (See PPR 1.3.)

Notice Pleading Plus

  • “The party that bears the burden of proof with respect to any claim or affirmative defense should plead all material facts that are known to that party,” including “any known monetary damages.” (See PPR 2.2.)
  • General denials of any statement of fact are not permitted. (See PPR 2.3.)

Defendants Must Answer, and Motions to Dismiss Do Not Stay the Case

  • Even if you elect to file a motion to dismiss, you also must file an answer. (See PPR 4.1.)
  • Unless otherwise prohibited by statute, the filing of a motion to dismiss will not delay any pleading, disclosure, or case management deadlines. (Id.)

After You Plead, Get Ready to Disclose

  • No later than 21 days after service of a pleading making a claim for relief or defending against a claim for relief, the pleading party must file its initial disclosures with the court. (See PPR 3.1, 3.3.)

Meet, Confer, and Preserve

  • Within 14 days after the filing of an answer, the parties must meet and confer regarding the “reasonable preservation of all relevant documents and things, including any electronically stored information.” (See PPR 6.1.)

Do Not Expect Extensions or Continuances

  • Motions for extensions of time or continuances (including motions to change the trial date) are strongly disfavored and will be denied on receipt, absent extraordinary circumstances. (See PPR 1.4, 8.5.)
  • Stipulated motions to continue or extend deadlines are not binding on the court and parties should assume the court will deny such motions. (See PPR 1.4.)

Do Expect Active Case Management

  • One judge will be assigned to the case for all purposes, and “absent unavoidable or extraordinary circumstances,” that judge will remain assigned to the case through its final resolution. (See PPR 5.1.)
  • No later than 49 days after the responsive pleadings are filed, the judge shall hold an initial case management conference, which each party’s lead trial counsel is required to attend. (See PPR 7.1.)
  • The court will provide ongoing, active case management, and the parties may contact the court for prompt conferences to clarify or modify any court order or resolve any disputed pretrial matter. (See PPR 8.1, 8.2.)

Factual and Expert Discovery Will Be Limited

  • Discovery will be limited, based on the proportionality factors and “matters that would enable a party to prove or disprove a claim or defense or to impeach a witness.” (See PPR 9.1.)
  • Absent extraordinary circumstances, only one expert witness per side may submit a report and testify in any given specialty or with respect to any given issue. (See PPR 10.2.)
  • An expert’s testimony will be limited to matters disclosed in reasonable detail in the report. (See PPR 10.1(b).)
  • Along with the expert’s report, a party also must produce its expert’s files at the time the witness is disclosed. (See PPR 10.1(a), (c), App. C (defining scope of production and noting parties do not have to produce their expert’s draft reports).)
  • There will be no depositions or other discovery of experts. (See PPR 10.1(d).)

Key Deadlines

  • Twenty-one days after service of the complaint, plaintiff files initial disclosures. (See PPR 3.1.)
  • Twenty-one days after plaintiff’s initial disclosures are filed, defendant files a responsive pleading, which must include an answer. (See PPR 3.2, 4.1.)
  • Fourteen days after defendant’s responsive pleading is filed, the parties meet and confer regarding preservation of documents and electronically stored information. (See PPR 6.1.)
  • Twenty-one days after service of defendant’s responsive pleading, defendant files initial disclosures. (See PPR 3.3.)
  • Seven days before the case management conference, parties file a joint case management report in the form set forth in Appendix B of CJD 11.2. (See PPR 7.1, App. B.)
  • No later than 49 days after defendant’s responsive pleading is filed, the case management conference is held, and lead counsel must attend. (See PPR 7.1.)

Generally, within 91 days of service of the complaint, the answer, any motions to dismiss, all disclosures, and the joint case management report will be filed and the case management conference will have occurred.

The PPRs are an attempt to improve the management of the civil litigation process and increase access to our judicial system by controlling the discovery process and lessening the expense of litigation. We urge litigators in the Denver area to support the Pilot Project and share their feedback during the two-year pilot period with IAALS.

Notes

[1] The PPRs are not to be confused with the amendments to the Colorado Rules of Civil Procedure for calculating trial and appellate deadlines that will apply in all cases in all judicial districts in the state. Most of these deadline amendments become effective Jan. 1, and others become effective July 1. Go to http://bit.ly/CPRCChanges for a copy of the amended rules.

Jessica Fuller and Tamara Goodlette are litigation associates at Rothgerber Johnson & Lyons LLP and can be reached at (303) 623-9000 or jfuller@rothgerber.com and tgoodlette@rothgerber.com.

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CLE Program: The Civil Access Pilot Project – New Rules of Civil Procedure for Cases in 5 Districts

This CLE presentation will take place on Friday, December 2. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live programs or webcasts, the programs will also be available as a homestudy in three formats: video on-demand, mp3 download, and audio CD recordings.
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Colorado Supreme Court to Live Stream Audio from Reapportionment Oral Arguments

November 8, 2011 By Leave a Comment

The Colorado Supreme Court will stream the audio live online from the oral arguments of the hearing for the reapportionment of the Colorado General Assembly. Oral arguments on the contentious issue are scheduled for November 9, 2011, from 9:00 am to 11:00 am at the Old Supreme Court Courtroom in the Capitol Building.

Click here to listen to the oral arguments live.

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Spark the Discussion: Medical Marijuana Law and Policy

October 19, 2011 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

I’ll start with a bold prediction: marijuana reform and same-sex marriage are the two policy areas in which young lawyers will see major movement in their lifetimes. These two “controversial” topics stand at the crossroads of a shift in society, with the younger generation pushing for increased tolerance of alternative lifestyles—whether it’s marriage choice or an individual’s decision to medicate—or recreate—with marijuana—and older Americans increasingly accepting that, at least with these two topics, change is inevitable.

This article will focus on medical marijuana law and policy—a dynamic field that an increasing number of Colorado lawyers are facing in their everyday practice. Currently, sixteen states (and the District of Columbia) have passed statewide medical marijuana laws, and a half-dozen others are poised to take similar action. What started largely as an area within criminal law practice—a small number of lawyers defending medical marijuana patients accused of criminal violations—has expanded into a cottage industry impacting nearly every area of legal practice. This column will highlight some of those areas and discuss the future of this hot topic.

Before reading further, please note that while medical marijuana is legal in Colorado and a growing number of states, and literally thousands of doctors recommend it every year for sick patients, it remains firmly illegal under federal law. Given these conflicting state and federal stances, it’s crucial that lawyers practicing in this area closely follow emerging trends and policies.

  • Business Law:
  • Colorado and several other states have medical marijuana laws with provisions allowing for retail stores known as dispensaries to sell marijuana to qualifying patients.  Budding entrepreneurs need guidance from attorneys who understand not only medical marijuana laws, but also traditional business law. All facets of corporate law, from drafting  operating agreements to negotiating commercial transactions, come into play with the operation of dispensaries.
  • Family Law:
  • An increasingly common theme in the family law realm is the presence of medical marijuana in custody battles or divorce proceedings. Often these disputes arise not from actual neglect or abuse, but merely from the presence of marijuana in the home. Patients need solid guidance to keep this—and all medicine—firmly away from children. There is a desperate need for lawyers who understand both medical marijuana law and family law and can advocate appropriately when the two areas overlap.
  • Elder Law:
  • As medical marijuana patients age they often end up in nursing homes or in-patient hospice care. When Maine’s medical marijuana law changed last November, the state expressly permitted nursing homes and hospice workers to act as registered medical marijuana caregivers for patients. Other states are silent on this issue. Large questions remain about federal funding for this type of care and how one patient’s possession of a federally-illegal substance could place others at legal risk.
  • Civil Law:
  • Legal medical marijuana businesses have the same problems as other, more mainstream businesses, and partnership disputes by owners of such stores are commonplace in Colorado. Some owners came out of a less-mainstream past, and built a million-dollar business without signing an operating agreement. In these messy situations, civil litigation is often the only remedy.
  • Election and Municipal Law:
  • The passage of a statewide medical marijuana law is invariably followed by conservative municipalities attempting to ban sales and cultivation within municipal borders. When Colorado passed a dispensary law in 2010, around 50 municipalities put measures on their local ballots to ban these retail shops in their communities. Whether through ballot initiative or action by a government body, there is a real opportunity for lawyers who understand election and municipal law to engage in this area.
  • First Amendment:
  • The most common complaint from community members about dispensaries is that they have offensive signage. While polls consistently show that roughly 80% of Americans support medical marijuana, most citizens don’t want it shoved in their face. Medical marijuana business owners need lawyers to explain their rights—and encourage discretion.
  • Intellectual Property Law:
  • “Can we patent the recipe for my marijuana cheesecake?” This question may seem peculiar, but my office gets several calls a week of this nature. As more patients turn to alternate forms of administering medical marijuana, such as through edibles or tinctures, interesting questions arise concerning protecting the manufacturer’s recipes and formulas.
  • Criminal Law:
  • As long as federal law continues to classify marijuana as a Schedule I Controlled Substance—the most dangerous and addictive class of drugs—there will be work for criminal defense attorneys representing medical marijuana patients and providers in federal court. On the state and local level, authorities continue to zealously target adults for marijuana crimes,  arresting over 750,000 citizens for possession of marijuana annually. That’s the equivalent of arresting every man, woman, and child in the state of Wyoming once a year!

As young attorneys in Colorado, we have an incredible opportunity in the field of medical marijuana law. Unlike property law or criminal law, this area is new and has very little case precedent. The young idealist attorney will fight out these important cases in the courtroom and establish laws that make sense both for the patient and the community.

Many lawyers initially chose this patient-centered line of work because they believed the time had come to pursue a more common-sense approach to marijuana and drug policy in America. Now, as lawyers from a diverse range of practice areas are entering this arena, let’s hope all remain true to the core principles that attracted most of us to this work:

Patients before politics; patients before profits.
Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.
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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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Attorney Coaches Needed for CBA High School Mock Trial Program

October 17, 2011 By Leave a Comment

The Colorado Bar Association is looking for attorneys to coach mock trial teams in Douglas and Adams counties. By engaging in the program, attorney coaches have the chance to build highly rewarding and long-lasting relationships with high school students, who describe their participation in this program as life-changing. Commitment time may be only a few hours or more per week, depending on your schedule.

If you have the time to devote to these students and give back to the community, please contact Carolyn Gravit for more information.

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State Judicial Issues New Forms Regarding Inmate Filing Fees

October 7, 2011 By Leave a Comment

The Colorado State Judicial Branch has issued a revised form for inmates to request to file in court without payment of filing and service fees. State Judicial also released a new finding and order form for such a request. Practitioners should begin using the new forms immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word templates. Download the new forms from State Judicial’s individual forms pages, or below.

Filing Fees

  • JDF 201 – “Inmate Motion Requesting to File Without Prepayment of Filing/Service Fees” (revised 9/11)
  • JDF 202 – “Finding and Order Concerning Inmate Motion” (9/11)
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Moot Court Judges Needed for National Asian Pacific American Bar Competition

September 29, 2011 By Leave a Comment

The National Asian Pacific American Bar Association (NAPABA) will be hosting the Rocky Mountain Region Thomas Tang Moot Court Competition at the University of Denver on October 28, 2011. Volunteers are needed to serve as judges.

No experience, judicial or litigation, is necessary. All judges will receive a bench brief with all main issues and applicable case law, as well as suggested questions to ask competitors. Breakfast and lunch will also be provided.

For more information or to volunteer, contact Nicoal Miller or click here.

The Thomas Tang National Moot Court Competition was founded in 1993 by the Asian Pacific American Law Student Association of the South Texas College of Law. It is administered by the NAPABA Law Foundation and the NAPABA Judicial Council. The Competition honors the late Judge Thomas Tang, a champion of individual rights, an advocate for the advancement of minority attorneys, an ardent supporter of NAPABA and the moot court competition. Judge Tang served on the United States Ninth Circuit Court of Appeals from 1977 until his passing in 1995. Judge Tang’s wife, Dr. Pearl Tang, continues the legacy and participates every year.

The Competition is open to all students but is especially designed to reach out to Asian Pacific American law students and provide them with an opportunity to showcase their writing and oral advocacy skills and compete for scholarships totaling $10,000.

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