May 18, 2012

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No Higher Calling, No Greater Responsibility with Attorney General John Suthers

May 17, 2012 By Leave a Comment

Colorado Attorney General John Suthers has never shied away from tackling the tough issues surrounding the powerful role of public prosecutors in the United States. In 2008, he published a book, No Higher Calling, No Greater Responsibility, that drew on his personal experiences as a local, state, and federal prosecutor, with insights on how to make the system better for everyone involved. The book also explored some of the more controversial calls for reform, including drug legalization. Written in straightforward terms, it provides a fascinating look at the intricacies of crime and punishment.

On May 22, 2012, Suthers will speak at a special 1-hour Literary Lawyers CLE presentation on the issues in his book and thoughts on recent cases and experiences. He will not only speak to the immense and unique power that prosecutors have, but the effects on the victims, perpetrators, and the public. In addition, prosecution ethics will be discussed, including zealous prosecution and the effects of advancing technology.

Public scrutiny has also increasingly come into play for prosecutors, as high-profile cases like the Hayman fire are played out in the press and public arena. Don’t miss this opportunity to hear Attorney General Suthers’ insights first hand. All attendees will also receive a copy of his book.

CLE Program: No Higher Calling, No Greater Responsibility with John Suthers (Literary Lawyers Series)

This CLE presentation will take place on Tuesday, May 22. Participants may attend live in our classroom or watch the live webcast.

 
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e-Legislative Report: Week Fourteen, April 16, 2012

April 18, 2012 By Leave a Comment

In this week’s Legislative Video Update, Michael Valdez talks about the budget bill that recently passed through the House and why the “Sunshine in Litigation Act” was laid to rest. Also in this episode, the Senate Judiciary Committee granted preliminary approval of appointments to the Colorado Commission on Judicial Discipline – find out who!

From the CBA Legislative Policy Committee

The Legislative Policy Committee did not meet on Friday, April 13.

From the Capitol

The Budget took center stage at the Capitol for the week of April 9. The House approved the slightly-amended, almost $20 Billion budget on an unprecedented vote of 64-1. The previous high marks for support for the budget bill in the House lingered around 52-13 so this was an unusual vote – there had to have been a temptation to check the electronic voting machine that the House utilizes on 3rd Reading to make sure that it hadn’t been tampered with by the members of the Joint Budget Committee.

At the halfway point in the budget process, it looks very promising for the Judicial Branch; the budget priorities for the Branch have been approved by the House. Those priorities include:

  • The remaining two judges from the 2007 judge bill;
  • Additional staff to oversee protective proceedings in the probate courts,
  • Pro se or self-represented case managers,
  • Additional probation officers to monitor sex offenders,
  • Modest pay increases for the lowest paid court clerks,
  • And more.

The Senate will take their turn with the budget bill starting on Monday when the Joint Budget Committee briefs committees of reference in 45 minute round-robin sessions. Both parties are expected to caucus on the Long Bill on Tuesday and the bill will “run” on 2nds on Wednesday. The final vote in the Senate is expected on Thursday.

Now everyone who follows the budget expects the Senate version of the bill to differ from the adopted House version – it always does. When that happens a conference committee – which is comprised of the folks who put the bill together – will be asked to work out the differences between the two versions. The Budget Bill should complete its legislative journey by the end of next week. We’ll bring you an update.

In other news:

At the request of the sponsor, the Judiciary Committee put SB 12-153 – Concerning the creation of the “Sunshine in Litigation Act” to rest on Monday, April 9 without testimony or argument. The sponsor told the Judiciary Committee that the fiscal impact of the bill was such that he could not move the bill forward.

The bill would have created a rebuttable presumption that information concerning a public hazard must be disclosed in a court action. If a party objected to the disclosure they could seek a protective order to limit disclosure if the court were to find, by clear and convincing evidence, that certain factors had been met. In any event the bill has been pulled and those folks who have been following the bill are now in sadness or are celebrating.

On Wednesday of last week, the Senate Judiciary Committee gave preliminary approval of appointments to the Colorado Commission on Judicial Discipline:

For a term expiring on June 30, 2015

  • Albus Brooks of Denver, Colorado, to serve as a non attorney, appointed.
  • David Kenney of Denver, Colorado, to serve as a non attorney, reappointed.
  • Federico C. Alvarez of Denver, Colorado, to serve as an attorney, reappointed.

For a term effective October 14, 2011 and set to expire June 30, 2015:

  • David Lee Dill of Pueblo, Colorado, to serve as a non attorney.

The full Senate is expected to confirm these nominations when their confirmation is heard on the Senate floor.

Also on Wednesday, the Senate Judiciary Committee defeated HB 12-1130 – Concerning offenses against an unborn child. The bill had been held for 10 days to allow the sponsor the opportunity to find language that a majority of the members of the Judiciary Committee could live with. The sponsor was unable to come up with language to satisfy a majority of the Committee so the bill was voted down by the committee on a 5-2 vote. The CBA LPC voted to oppose the legislation at the request of the Civil Rights Committee.

Filed Under: Legislation Tagged With: , , , , , ,

Legal Writing Pro: Five Secret Typography Tips for Lawyers

April 11, 2012 By Leave a Comment

By Matthew Butterick

Writing a book about typography for lawyers is a little like running a karate dojo — as the master, I have to keep a few secrets for myself. But for Ross, I’ll bend the rules. Here are five of my favorite typography tips that I don’t usually share with people:

1) Extra characters on the iPhone & iPad

Press a key on the iPhone (or iPad) keyboard and hold it down. For many keys, a key palette will appear with alternate characters. Alphabetic characters reveal accented versions. Under punctuation, you’ll find the ellipsis, the em dash, the bullet, the section mark, curly quotes, and other little conveniences.

2) Footnote references in bold

By default, your word processor will set your footnote-reference marks in the same font as your text. But at their reduced point size, those marks can look a bit pale and fragile. Instead, set those marks using a bold font. That way, when the marks get shrunk, they’ll hold up better on the page.

3) ALL-CAPS on stationery and business cards

I advise lawyers not to use CAPS for more than one line at a time, to prevent anyone from setting whole paragraphs in caps. But multiple lines of caps on stationery or business cards can look quite sharp. In fact, at those small sizes, caps are often more legible than standard upper & lower case. My own stationery and business cards are entirely set in caps.

4) Basic Commercial — a great substitute for Arial or Helvetica

Basic Commercial is a sans serif font from the early 1900s that was a precursor to Helvetica (and later, Arial). It has a similar informational look but with more historical flavor. (It was also the original font used for New York City subway signage in the ’70s.) A terrific and underused font. (See http://typo.la/bc)

5) PDF exhibit letters

If you litigate in a district that requires electronic filing, you may have wondered how to put exhibit letters in your PDFs. I’ve gotten documents from lawyers that look like they jammed the plastic exhibit tab through a scanner — not such a great idea. In addition to endangering your scanner, the exhibit letter will be barely visible to someone flipping through the PDF. So I made a special set of extra-large exhibit letters that I can drag & drop into exhibit PDFs. You can download them at http://typo.la/exhib.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Filed Under: Practice Management Tagged With: , , , , ,

New Bill Signed Creating Exception to Hearsay Rule; Allows Testimony from Persons with Developmental Disabilities

April 3, 2012 By Leave a Comment

On Tuesday, April 3, 2012, Governor John Hickenlooper signed HB 12-1085 into law, which creates an exception to the hearsay rule and allows testimony from persons with developmental disabilities in certain circumstances.

An out-of-court statement made by a person with a developmental disability that is not otherwise admissible as an exception to hearsay is admissible in any criminal or delinquency proceeding in which the person is alleged to have been a victim and the statement describes all or part of any of the following offenses:

  1. Sexual assault;
  2. Unlawful sexual contact;
  3. Sexual assault on a child;
  4. Sexual assault on a child by one in a position of trust;
  5. Internet exploitation of a child;
  6. Sexual assault on a client by a psychotherapist;
  7. Incest;
  8. Aggravated incest;
  9. Trafficking in children;
  10. Sexual exploitation of a child;
  11. Indecent exposure; or
  12. Criminal attempt to commit any of these acts.

Click here to read the full bill, including further limiting factors for this exception to the hearsay rule.

Additionally, Governor Hickenlooper also signed the following bills into law on Monday:

  • HB 12-1065 – Deadline Advanced Practice Nurse Retain Prescriptive Authority
    • Concerning the Deadline for an Advanced Practice Nurse Who was Granted Prescriptive Authority Prior to July 1, 2012, to develop an Articulated Plan for Purposes of Retaining Prescriptive Authority.
  • HB 12-1061 – The Skills for Jobs Act
    • Concerning Requiring a Report of the Correlation between the Educational Credentials Issued and the State’s Workforce Needs

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

Filed Under: Legislation Tagged With: , , , , , , , , , ,

Report from the ABA House of Delegates Meetings at the 2012 Midyear Meeting in New Orleans

March 15, 2012 By Leave a Comment

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates.  The ABA House of Delegates met at the ABA’s midyear meeting held in New Orleans, Louisiana, on February 6, 2012.  This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The Midyear Meeting was very well-attended.  It had the best reported attendance on record.  The ABA sponsored numerous programs on issues such as the Ethics 20/20 commission, the state court funding crisis, and efforts to improve access to justice.  There were many important issues addressed by the House of Delegates at the midyear meeting.  This Article summarizes a few of them.

Ethics 20/20 Commission’s White Papers and Proposals Relating to the Ethics of Litigation Financing, Non-Lawyer Ownership of Law Firms, Outsourcing, and the Use of Technology of Mobile Devices

Before the House of Delegates convened, the Ethics 20/20 Commission sent information around to the delegates regarding the work of the Commission and its proposals.  Specifically, the Commission informed the delegates of its plan to bifurcate its presentation of proposals to help facilitate the House of Delegates’ consideration of the Commission’s recommendations.  The decision to bifurcate the presentation of proposals foretells a concern that some of the Commission’s proposals will be controversial and will generate much discussion and debate.

Indeed, from the preview that the Commission has provided, some of the issues that the Commission will put before the House will generate much discussion.  The Commission has produced white papers that discuss many of the complex ethical issues that cannot effectively be addressed through changes to Model Rules.  Specifically, one of the Commission’s white papers discusses ethical issues involved with litigation financing, including issues regarding conflicts of interest, a lawyer’s duty of confidentiality, the attorney-client privilege, and rules regulating the exercise of the lawyer’s independent judgment.  The Commission’ white paper can be found by clicking here.

The Commission also is working on proposals relating to alternative business structures for law firms, outsourcing of legal services and confidentiality-related ethics issues arising from lawyers’ use of technology. Additionally, the Commission also is working on a model rule relating to lawyers’ obligations to retain client files.  An issues paper regarding alternative business structures for law firms – including non-lawyer ownership of law firms – has been distributed by the Commission.  It can be found by clicking here.

During the House of Delegates meeting, Former ABA President Carolyn B. Lamm addressed the House about the Commission’s progress.  President Lamm explained that numerous various roundtable sessions and meetings have been held around the country.  She explained that formal recommendations will be presented at the annual meeting in 2012 and at the midyear meeting in 2013.  President Lamm explained that one of the Commission’s more controversial issues is whether non-lawyers should be allowed under legal ethics rules to have a limited ownership interest in law firms in the United States.  This issue has been discussed extensively in Colorado previously.

President Lamm explained that the Commission is considering other issues relating to the need to balance the convenience and efficiencies inherent in a lawyer’s use of new technologies, while also preserving the lawyer-client relationship, confidentiality, competence and the values of the profession.  President Lamm explained that the Commission plans in presenting proposals on each of these issues for consideration by the House of Delegates.  All interested members of the Bar should get in touch with me or other Colorado delegates to discuss any concerns about any of the issues that are being considered by the Ethics 20/20 Commission, or the proposals that are likely coming from the Commission.

Summary of the House of Delegates

After the House of Delegates convened on February 6, 2012, the Delegates were greeted by Mitchell Landrieu, the Mayor of New Orleans, who also is a lawyer.  Mayor Landrieu talked about the challenges that the city has been through in recent years, with Hurricanes Katrina and Rita, and the BP oil spill.  Mayor Landrieu quipped that the city is “waiting for locusts now.”  Mayor Landrieu’s speech was interesting and insightful, explaining that New Orleans is truly resilient and has become the “a laboratory for innovation and change,” because of the disasters it has suffered.  Mayor Landrieu’s speech was an excellent way to kick-off the work of the House.

After the Mayor’s speech and some other introductory actions, the House got to work debating and voting on resolutions before the House.  The House adopted a number of important resolutions, including:

  • Resolution 101A, which adopted the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party which provide a framework through which legislatures, courts acting in their supervisory capacity and administrative agencies can balance the needs of law enforcement and the interests of privacy, freedom of expression and social participation.
  • Resolution 101B, which urged governments at various levels to require laboratories producing reports for use in criminal trials to adopt pretrial discovery procedures requiring comprehensive and comprehensible laboratory and forensic science reports, and listed relevant factors to be included in such reports.
  • Resolution 101C, which urged trial judges who have decided to admit expert testimony to consider a number of factors in determining the manner in which that evidence should be presented to the jury, and also provided guidance about how to instruct the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings.
  • Resolution 101F, which supported legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.
  • Resolution 113, which called for adoption as ABA policy uniform standards for language access in courts.  The policy provides clear guidance to courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the need in the communities they serve.
  • Resolution 102B, which approved the Uniform Electronic Legal Material Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2011, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.  The Uniform Act provides rules for the authentication and preservation of electronic legal material.
  • Resolution 108, which urged state and territorial bar admission authorities to adopt rules and procedures to accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defenses.
  • Resolution 111, which urged entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure the exam reflects what the test is designed to measure and not the test taker’s disability.
  • Resolution 302, which supported the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided “government” lawyers when they are acting “under color of state law.”  This issue is particularly important given that there is a pending case before the United States Supreme Court considering this question.  See Filarsky v. Delia, U.S. No. 10-1018, argued 1/17/2012.

A summary of the resolutions adopted by the House can be found by clicking here.  Additionally, I can provide a copy of the resolutions to any interested reader. Contact me if interested.

Statement from President Robinson

In addition to this important work, the House of Delegates heard from Bill Robinson, President of the ABA.  President Robinson explained that the most pressing issue facing the legal system today is under-funding of the courts, which is at a crisis level.  President Robinson urged all ABA members to consider the under-funding crisis to be a threat to our liberty and rule of law.  President Robinson explained the ABA’s efforts to combat this crisis, including its extensive education efforts and its efforts to increase public awareness about the crisis.  Additionally, the ABA has made the crisis the core of the law day events, which will focus on the theme: “No Courts, No Justice, No Freedom.”

Nomination of James Silkenat as President-Elect

Additionally, the nominating committee announced that James Silkenat of New York was nominated to be President-Elect Designee of the ABA.  The House of Delegates will vote on his nomination at the Annual Meeting in Chicago this August.  If elected, Mr. Silkenat will serve a one-year term as President beginning in August, 2013.  All members of the Bar are urged to give any input on Mr. Silkenat to me or any of the other Colorado delegates.

Other Matters

Finally, the House of Delegates also considered other matters.  Those other matters included a report from the ABA’s Executive Director, Jack Rives, and a report from the ABA’s treasurer.  The House also heard from Chief Judge Washington, who is the President of the Conference of Chief Justices.  Chief Judge Washington spoke about language access to the courts.  He also discussed the core focuses of the Conference, which are judicial independence and civics education.

Conclusion

I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in New Orleans.  I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

The American Bar Association is offering a free trial membership in the ABA and in a section of the ABA. Sign up here.

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

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Are You Up to Date? Torts: 2011 Annual Survey of Colorado Law

March 2, 2012 By Leave a Comment

A lot happened in 2011 in the area of Tort Law, especially in the appellate courts. Are you familiar with all the case law and developments?

CBA-CLE is offering a number of one-hour CLE classes covering major updates from the past year in a number of practice areas, as well as publishing a full 2011 Annual Survey book for practitioners. Our upcoming Torts program will cover updates in numerous areas of tort law that should interest almost any civil litigator, including:

  • The Dram Shop Statute
  • The Colorado Governmental Immunity Act
  • The Civil Theft Statute
  • The Punitive Damages Statute
  • Res ipsa loquitur doctrine and sudden-emergency instruction
  • Medical malpractice
  • Legal malpractice and negligent misrepresentation
  • Constitutionality of significant punitive-damages award
  • Burden of proof
  • Certification of class actions
  • Proof necessary for but-for causation
  • Recreational-liability claims
  • Negligent infliction of emotional distress
  • Trade-secret status of proprietary computer databases

Also, take a look below at this segment of the Torts: 2011 Annual Survey of Colorado Law chapter by the presenter of the program, John Grund, Esq.

Torts: 2011 Annual Survey of Colorado Law

CLE Program: Torts – 2011 Annual Survey of Colorado Law

This CLE presentation will take place on Tuesday, March 6. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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Colorado Court of Appeals: Petitioner Entitled to Attorney Fees and Costs for Piercing the Corporate Veil

February 7, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Swinerton Builders v. Nassi on February 2, 2012.

Attorney Fees—Breach of Contract—Pierce Corporate Veil

Plaintiff Swinerton Builders (Swinerton) appealed the district court’s order denying its motion to recover the attorney fees and costs that it incurred in successfully piercing Beauvallon Corporation’s (Beauvallon) corporate veil. The order was reversed and the case was remanded.

Swinerton entered into a construction contract with Beauvallon in 2001 that contained an arbitration clause and fee-shifting provision. After the construction project was completed, Swinerton filed a demand for arbitration, asserting breach of contract claims against Beauvallon and its president, defendant Craig Nassi, and an unjust enrichment claim against Beauvallon. Ultimately, the arbitrators ordered Beauvallon to pay Swinerton more than $1 million in damages, interest, attorney fees, and costs, and the district court confirmed this award. Thereafter, the district court ruled in favor of Swinerton, concluding that Swinerton could pierce Beauvallon’s corporate veil and hold Nassi personally liable for the arbitration award against Beauvallon.

Swinerton contended that the district court erred in refusing to award it the attorney fees and costs that it incurred in its successful veil-piercing action. A party who prevails in an action to pierce the corporate veil of a corporation may recover the attorney fees and costs incurred in that action if (1) the action was brought to enforce a breach of contract judgment against the corporation; and (2) the contract underlying the judgment authorized an award of fees and costs for enforcing the judgment against the corporation.

Here, Swinerton’s action to pierce the corporate veil was not a separate and independent claim. Rather, it was a procedural mechanism to enforce the arbitration award against Beauvallon in the underlying breach of contract action. Thus, the veil-piercing lawsuit was, in effect, an enforcement action against Beauvallon. When the district court determined that Swinerton could pierce Beauvallon’s corporate veil, Nassi became liable for, among other things, Beauvallon’s contractual obligations under the fee-shifting provision. Accordingly, Swinerton was entitled to recover the reasonable attorney fees and costs incurred in the veil-piercing action. The case was remanded to the district court for a determination and award of the appropriate amount of such fees.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

Filed Under: Case Law Tagged With: , , , ,

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)
Filed Under: Resources Tagged With: , , , , , , , , , , , , , ,

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.

Filed Under: Resources Tagged With: , , ,

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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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.

Filed Under: Case Law Tagged With: , , , , ,

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.

Filed Under: Case Law Tagged With: , , , ,
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