April 28, 2017

Colorado Court of Appeals: Vacation and Sick Leave are Pecuniary Losses Compensable to Victim Under Restitution Act

The Colorado Court of Appeals issued its opinion in People v. Perez on Thursday, April 20, 2017.

RestitutionVacationSick LeaveProximate CausePecuniary Loss.

Perez pleaded guilty to leaving the scene of an accident resulting in serious bodily injury. After the court sentenced Perez, the prosecution requested restitution based on the victim missing 55 days of work after the accident, including use of vacation and sick leave. Perez argued that the victim’s expenditure of leave was not compensable and that he was not the proximate cause of the victim’s losses because he pleaded guilty to leaving the scene of an accident resulting in serious bodily injury but not to any crime establishing that he was the proximate cause of the victim’s injury. The district court held that Perez was the proximate cause of the victim’s losses and ordered restitution.

On appeal, Perez claimed that the district court erred in holding that his actions were the proximate cause of the victim’s injuries because it did not make an express finding on the issue. The court’s rejection of Perez’s proximate cause contention necessarily implied that it found Perez to be the proximate cause of the victim’s injuries, and the record supports that finding. The conduct underlying the charge of leaving the scene of an accident resulting in serious bodily injury was Perez hitting the victim with his car. The crime for which Perez pleaded guilty arose from acts that injured the victim. Therefore, there was no error in this finding.

Perez next contended that vacation and sick leave are not compensable under the Restitution Act (the Act) because the loss of leave is not a pecuniary loss. The court of appeals concluded that expenditure of vacation and sick leave is a loss of employee benefits comparable to lost wages that is compensable under the Act.

Lastly, Perez contended that the court erred in calculating his restitution to the victim by five work days. The award of an additional five days of missed work was not supported by the record and results in a windfall to the victim, and must be reduced.

The order was affirmed in part and the case was remanded for reduction of the restitution award.

Summary provided courtesy of The Colorado Lawyer.

Bills Enacting Uniform Unsworn Declarations Act, Exemption from Mandatory Advisement Requirements, and More Signed

On Thursday, April 13, 2017, Governor Hickenlooper signed ten bills into law. To date, he has signed 147 bills into law this 2017 legislative session. Some of the bills signed Thursday include a bill adopting the Uniform Unsworn Declarations Act, a bill granting immunity to a person who renders emergency assistance to a person or animal in a locked vehicle, a bill exempting certain traffic violations from the mandatory advisement requirements for municipal judges, and more. The bills signed Thursday are summarized here.

  • HB 17-1021“Concerning an Employer’s Violation of Wage Laws,” by Rep. Jessie Danielson and Sen. John Cooke. The bill clarifies that information obtained by the Division of Labor Standards and Statistics that relates to a finding of a violation of wage laws is not confidential and shall be released to the public or for use in a court proceeding, unless the Director of the Division makes a determination that the information includes specific information that is a trade secret.
  • HB 17-1081“Concerning Authority to Offer In-state Tuition Classification at State-supported Institutions of Higher Education for Athletes Training in Colorado in Programs Approved by the United States Olympic Committee,” by Rep. Dan Nordberg and Sen. Stephen Fenberg. The bill allows a state-supported institution of higher education to charge in-state tuition to an athlete residing anywhere in Colorado and training in an elite level program in Colorado approved by the United States Olympic committee and the governing body of an Olympic, Paralympic, Pan American, or Parapan American sport.
  • HB 17-1083“Concerning an Exemption for Certain Traffic Violations of the Requirement that a Municipal Judge Inform a Defendant of Certain Rights,” by Rep. Larry Liston and Sen. Bob Gardner. The bill excludes cases involving traffic infractions or violations for which the penalty is only a fine and for which jail is not a possibility from the requirement that municipal judges inform defendants of certain rights.
  • HB 17-1125“Concerning Eliminating the Duty of the Division of Correctional Industries to Provide Certain Services for the State’s Correctional Facilities,” by Reps. Dan Nordberg & Faith Winter and Sens. Jim Smallwood & Cheri Jahn. The bill removes a requirement that the Division of Correctional Industries in the Department of Corrections establish programs for vehicle maintenance, physical plant and facility maintenance, and food and laundry services for each of the state’s correctional facilities.
  • HB 17-1144“Concerning Amendments to the Automatic Cash Fund Funding Mechanism for Payment of Future Costs Attributable to Certain of the State’s Capital Assets,” by Rep. Daneya Esgar and Sen. Randy Baumgardner. The bill requires the General Assembly to include an annual depreciation-lease equivalent payment line item payable from the cash fund that is the funding source for the capital construction appropriation in the operating section of the annual general appropriation act for each state agency.
  • HB 17-1145“Concerning Authorization for Amateur Winemakers to Enter Wines in Organized Events,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill authorizes amateur winemakers to enter their wine in organized events, such as contests, tastings, or judgings at licensed premises.
  • HB 17-1179“Concerning Immunity for a Person who Renders Emergency Assistance from a Locked Vehicle,” by Reps. Lori Saine & Joann Ginal and Sens. Lois Court & Vicki Marble. The bill provides immunity from civil and criminal liability for a person who forcibly enters a locked vehicle for the purpose of rendering assistance to an at-risk person or animal.
  • HB 17-1194“Concerning Technical Changes Relating to the Operation of Pathways in Technology Early College High Schools,” by Rep. Mike Foote and Sen. John Cooke. The bill amends the definition of a pathways in technology early college (p-tech) high school to include a p-tech program that operates within a host school.
  • HB 17-1196“Concerning Changes to the Training Requirements for Applicants for Licensure under the ‘Barber and Cosmetologist Act’,” by Rep. Jeni Arndt and Sen. Kevin Priola. The bill requires the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies to promulgate rules for applicants for cosmetologist or barber licensure to furnish proof of training, not to exceed 50 credits or 1,500 contact hours.
  • SB 17-154“Concerning  the ‘Uniform Unsworn Declarations Act’, by Sen. Bob Gardner and Rep. Cole Wist. The bill adopts in Colorado the Uniform Unsworn Declarations Act,expands the uniform law to include domestic unsworn declarations as contemplated, and clarifies that the act applies only to the use of unsworn declarations in state courts.

For a list of all Governor Hickenlooper’s 2017 legislative actions, click here.

Colorado Court of Appeals: Contract Exception to the Collateral Source Statute is Applicable in Post-Verdict Proceedings to Reduce Damages

The Colorado Court of Appeals issued its opinion in Pressey ex rel. Pressey v. Children’s Hospital Colorado on Thursday, March 9, 2017.

Medical Malpractice—Health Care Availability Act—Damages Cap—Medicaid—Collateral Source Statute—Contract Exception—Pre-majority Economic Damages—Minor—Statute of Limitations.

Naomi Pressey (Naomi), by and through her conservator Jennifer Pressey, sued Children’s Hospital Colorado (Hospital) for negligence. The case was tried to a jury, which found the Hospital negligent and awarded Naomi $17,839,784.60. The damages award included past medical expenses, past noneconomic losses, future medical expenses, future lost earnings, and future noneconomic losses. After trial, the court reduced the damages to $1 million based on the legislative directive in C.R.S. § 13-64-302(1)(b) of the Health Care Availability Act (HCAA). The court approved Naomi’s motion to exceed the damages cap for good cause and entered judgment in her favor for $14,341,538.60.

On appeal, the Hospital argued that the court erred in excluding evidence of Medicaid benefits and private insurance available to Naomi in the post-verdict proceeding to exceed the damages cap. Sound public policy supports both the cap and the contract exception to the collateral source statute. The Colorado Court of Appeals concluded that the contract exception to the collateral source statute is applicable in post-verdict proceedings to reduce damages in medical malpractice actions under the HCAA. Medicaid benefits are paid on behalf of the injured party and are thus collateral sources subject to the contract exception. Accordingly, the trial court correctly did not consider Medicaid payments and private insurance in determining whether to exceed the HCAA damages cap.

The Hospital also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict because Naomi failed to establish that she, rather than her parents, was entitled to her pre-majority economic damages. Parents own the legal right to seek reimbursement for a minor’s pre-majority economic damages. Here, Naomi’s parents did not relinquish this right and failed to institute a claim within the applicable statute of limitations.

The Hospital further argued that irrespective of the evidence of Medicaid and private insurance benefits, Naomi did not establish good cause to exceed the damages cap. The trial court considered a multitude of factors in concluding there was good cause. Its decision was not manifestly arbitrary, unreasonable, or unfair, and was not a misapplication of the law.

Lastly, the Hospital argued that Naomi received a duplicate award for future medical care and lost future earnings. The court concluded there is record support for the trial court’s findings that the damage award does not overlap with the future lost earnings award.

That portion of the judgment awarding pre-majority economic damages to Naomi was reversed. The judgment was affirmed in all other respects. The case was remanded for recalculation of the total amounts owed by the Hospital.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Acknowledgment of Employer’s Vicarious Liability Bars Direct Negligence Claims Against Employer

The Colorado Supreme Court issued its opinion in In re Ferrer v. Okbamicael on Monday, February 27, 2017.

Tort—Respondeat Superior Liability—Direct Negligence.

In this original proceeding under C.A.R. 21, the Colorado Supreme Court reviewed trial court orders dismissing plaintiff’s direct negligence claims against an employer that acknowledged vicarious liability for its employee’s negligence, and denying plaintiff’s motion for leave to amend her complaint to add exemplary damages against the employer and the employee. The court adopted the rule articulated in McHaffie v. Bunch, 891 S.W.2d 19 822 (Mo. 1995), which held that an employer’s admission of vicarious liability for an employee’s negligence bars a plaintiff’s direct negligence claims against the employer. The court declined to adopt an exception to this rule where the plaintiff seeks exemplary damages against the employer. The court concluded that the trial court did not err in dismissing plaintiff’s direct negligence claims against the employer or in denying plaintiff’s motion for leave to amend the complaint to add exemplary damages. The court therefore affirmed the trial court orders and discharged the rule to show cause.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Penalty of Two Times Covered Benefit for Insurance Bad Faith Upheld

The Colorado Court of Appeals issued its opinion in Nibert v. Geico Casualty Co. on Thursday, February 23, 2017.

Bad Faith—C.R.S. § 10-3-1116—Jury Instructions—Statutory Delay—Attorney Fees.

Nibert and her husband were injured when a car collided with their motorcycle. As relevant to this appeal, Nibert had an underinsured motorist (UIM) policy through Geico Casualty Co. (Geico) with a $25,000 coverage limit. Geico offered Nibert $1,500 to settle her claim.

Nibert sued Geico for breach of contract, common law bad faith, and statutory delay under C.R.S. § 10-3-1116. After discovery and before trial, Geico paid Nibert the $25,000 UIM coverage limit to settle the breach of contract claim.

A jury returned verdicts awarding Nibert $33,250 in noneconomic damages on her bad faith claim and $25,000 for her statutory delay claim. The trial court entered judgment on the jury’s verdict for the bad faith claim and judgment of $50,000 for damages on the statutory delay claim. It also granted Nibert’s motion for attorney fees in the amount of $118,875.30.

On appeal, Geico argued that the trial court failed to adequately instruct the jury on its theory of defense that challenges to debatable claims are reasonable. The trial court relied on the Colorado pattern jury instructions governing common law bad faith and first-party statutory claims. While it did not accept Geico’s tendered instructions on these issues, it allowed Geico to present expert testimony regarding the “fairly debatable” issue and to argue its theory of defense to the jury. The Colorado Court of Appeals concluded that the instructions, as given, adequately instructed the jury on the applicable law and the parties were afforded ample opportunity to present their case theories to the jury. The trial court’s ruling was neither manifestly arbitrary, unreasonable, or unfair, nor a misapplication of the law.

Geico then argued that the trial court erred in awarding Nibert recovery of two times her UIM benefit as a penalty. C.R.S. § 10-3-1116(1) provides a first-party claimant the right to bring an action for “two times the covered benefit.” Geico argued that the trial court should have allowed a setoff of the ultimate statutory damages award in the amount of $25,000 previously paid to Nibert on her UIM claim. The court agreed with other divisions that have concluded that a statutory damages award of two times a delayed benefit—even when that benefit has already been paid, resulting in an effective payment of three times the contracted benefit—is contemplated by the plain meaning of C.R.S. § 10-3-1116.

Geico also contended it was error to award attorney fees incurred to prosecute the common law bad faith and statutory delay claims, both before and after the date when payment of the UIM benefit was delayed. They argued the attorney fees should be limited to the period from the date the benefit was first delayed to the date the benefit was actually paid. The court found no support for Geico’s argument that the section does not contemplate an award of attorney fees incurred litigating anything other than a contractual claim or incurred for the time before and after a delayed benefit accrues and is paid.

The court also granted Nibert’s request for an award of her appellate attorney fees.

The judgment and order were affirmed, and the case was remanded for a determination of the amount of reasonable attorney fees and costs.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Insured Not Entitled to Prejudgment Interest when Settlement Reached Prior to Filing Suit

The Colorado Court of Appeals issued its opinion in Munoz v. American Family Mutual Insurance Co. on Thursday, February 23, 2017.

Prejudgment Interest under C.R.S. § 13-21-101(1).

Munoz was injured in a collision with an uninsured motorist (UM). Munoz opened a UM claim with his insurer, American Family Mutual Insurance Co. (American Family). American Family made settlement offers to Munoz but maintained it was not required to pay prejudgment interest because it was only required to do so after a judgment had been entered by a court. Munoz accepted American Family’s final offer, understanding that it did not include interest.

Munoz then sued American Family and the UM. Munoz moved under C.R.C.P. 56(h) for a determination whether American Family was required to include prejudgment interest as part of its UM claim settlement. The trial court ruled, as a matter of law, that the insured is entitled to such interest only when a judgment has been entered and interest is awarded as a component of damages assessed by the jury’s verdict or the court.

On appeal, Munoz argued that the trial court erred because prejudgment interest is a necessary element of compensatory damages that makes an injured party whole. American Family countered that the plain language of C.R.S. § 13-21-101 states that prejudgment interest can only be awarded after a judgment, based on a damages award determined by a trier of fact, has been entered. The Colorado Court of Appeals determined the plain language of the statute requires, prior to prejudgment interest being awarded, that (1) an action must be brought; (2) the plaintiff must claim damages in the complaint; (3) there must be a finding of damages by a jury or the court; and (4) judgment is entered.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Tractor is Motor Vehicle for Underinsured Motorist Coverage Purposes

The Colorado Court of Appeals issued its opinion in Smith v. State Farm Mutual Automobile Insurance Co. on Thursday, January 12, 2017.

Insurance—Covered Motor Vehicle—Underinsured Motorist Provision—Farm Tractor.

Bunker was driving a farm tractor when he collided with Smith’s truck. The hay spears attached to the tractor pierced the truck and impaled Smith, leaving him severely injured. Bunker pleaded guilty to careless driving, and Smith settled his claim against Bunker for Bunker’s liability policy limits. Because this settlement did not fully compensate Smith for his injuries, he filed a claim for underinsured motorist benefits (UIM) with State Farm Mutual Automobile Insurance Co. (State Farm). State Farm denied coverage on the basis that a farm tractor is not a motor vehicle. Smith sued and the district court dismissed the complaint, finding that the tractor was not a covered motor vehicle for purposes of the UIM coverage policy.

On appeal, Smith contended that his policy’s property damage coverage section definition of “uninsured motor vehicle” is included in the UIM coverage provision. The Colorado Court of Appeals declined to extend the “uninsured motor vehicle” definition found only in the property damage coverage provision beyond that provision.

Smith next contended that the plain and ordinary meaning of “motor vehicle” includes the tractor. The court determined that the plain and ordinary meaning is an automotive vehicle not operated on rails and one with rubber tires for use on highways. Applying this definition, the court found that the tractor had wheels and its own motor, was not operated on rails, and was designed for use on streets and highways. Therefore, it was a covered motor vehicle under Smith’s UIM coverage provision.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Terms of Settlement Offer were Valid and Enforceable When Accepted

The Colorado Court of Appeals issued its opinion in Kovac v. Farmers Insurance Exchange on Thursday, January 12, 2017.

Personal Injury—Underinsured Motorist—Statute of Limitations—Summary Judgment.

Kovac was seriously injured in a car accident with Filipelli. It was undisputed that Filipelli was at fault. Kovac’s medical expenses exceeded $1.4 million. Filipelli was covered by Shelter Insurance Company (Shelter) with a liability limit of $100,000. Kovac was insured under two different automobile policies with Farmers Insurance Exchange (Farmers).

Kovac settled with Shelter for its policy limits. Later, Farmers offered to settle Kovac’s remaining claims for $80,000, but the parties could not reach a settlement. Kovac sued Farmers on April 3, 2015 for recovery of UIM benefits, tortious bad faith breach of contract, and unreasonable delay and denial of insurance benefits. Farmers moved for summary judgment on the grounds that the Shelter settlement check was tendered to Kovac’s attorney on April 2, 2013 and the statute of limitations therefore ran on April 2, 2015. The district court agreed and dismissed the suit.

On appeal, Kovac argued that although her attorney received the check and settlement offer on April 2, it was not accepted until April 5 when the release was signed and the check endorsed. Therefore, the statute of limitations ran on April 5, 2015 and her complaint was timely filed on April 3, 2015. C.R.S. § 13-80-107.5(b) provides that the statute of limitations runs two years from the date when the insured “received payment of the settlement” on the underlying bodily injury claim. The court of appeals determined that Kovac released her claims against Filipelli on April 5, 2013.  Therefore the statute of limitations had not run when she filed her complaint against Farmers.

The summary judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Exculpatory Clauses in Fitness Agreement Did Not Bar PLA Claim

The Colorado Court of Appeals issued its opinion in Stone v. Life Time Fitness, Inc. on Thursday, December 30, 2016.

Summary Judgment—Negligence—Premises Liability Act—Liability Release—Assumption of Risk.

Stone was a member of a fitness club owned by defendants (collectively, Life Time). She fell and fractured her ankle in the club’s women’s locker room after a workout. Stone asserted a general negligence claim and a claim under Colorado’s Premises Liability Act (PLA), alleging that Life Time allowed a trip hazard and dangerous condition to exist and thus failed to exercise reasonable care.

Life Time moved for summary judgment, relying on assumption of risk and liability release language contained in the agreement Stone signed when she joined the club. The district court granted the motion, without distinguishing between the negligence and PLA claims, finding that the agreement was valid and enforceable and that Stone had released Life Time from all the claims asserted in the complaint.

On appeal, Stone contended that the district court erred in entering summary judgment and dismissing her action. As to the negligence claim, the Court of Appeals determined that the PLA provides the sole remedy for injuries against landowners on their property and abrogates common law negligence claims against landowners. Thus Stone could not bring a common law negligence claim against Life Time.

Stone also argued that the exculpatory clauses in the agreement, while applying to the workout areas, did not clearly and unambiguously apply to injuries incurred in the women’s locker room. Exculpatory agreements are generally disfavored. A court must consider four factors to determine whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language. As to the first factor, the Colorado Supreme Court has specified that no public duty is implicated if a business provides recreational services. On the second factor, courts have consistently held that recreational services are neither essential nor a matter of practical necessity. With respect to the third factor, recreational service contracts of this type are generally considered to be fairly entered into. These three factors weighed in favor of the enforceability of the agreement. On the fourth prong, however, in waiving future negligence claims, the intention of the parties must be expressed in clear and unambiguous language. After scrutinizing the exculpatory clauses, the court of appeals concluded that the agreement used excessive legal jargon, was unnecessarily complex, and created a likelihood of confusion. Thus, the agreement did not bar Stone’s PLA claim.

The judgment on the negligence claim was affirmed, the judgment on the PLA claim was reversed, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Top Ten Programs and Homestudies of 2016: Litigation

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today on Legal Connection, we are featuring the Top Ten Litigation Programs and Homestudies. Litigation encompasses several practice areas, including commercial litigation, tort/insurance, civil litigation, and more, but some things are common to all trial attorneys. CBA-CLE offers many great programs for litigators, and our litigation library contains both helpful treatises and reference guides. Find the program, homestudy, or book you need at cle.cobar.org/Books/Litigation.

And now, for the Top Ten Litigation Programs and Homestudies of 2016.

10. Expert Witness Introduction for Colorado Practitioners: Top 10 Tips
This CLE covers key basics of Colorado expert witness practice: who is an expert witness (CRE 702);  what are the requirements of being an expert (CRE 702); when may an expert witness testify (CRE 702); what are the discovery requirements applicable to expert witnesses (CRCP 26(a)(2)(B); what is the timing for required disclosure of expert witnesses (CRCP 26(a)(2)(C) and the sanctions for failing to disclose expert witnesses properly and timely (CRCP 37(c)(1))? This CLE will be based on Colorado law, but will present a comparison to federal law, and identify key federal cases under analogous Rules where Colorado law is absent. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

9. Making Your Record: The Why, When, and How of Appellate Advocacy in Trial Court
Learn how to “make your record” in state and federal court to preserve your issue on appeal in the Pre-trial, Trial, and Post Trial phases. Attorney Kendra Beckwith will cover Pleadings, Pre-Trial Motions, Discovery Disputes, Trial Objections and Motions, Jury Instructions and Verdict Forms, Post-Trial Motions, and Notice of Appeal. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

8. Deposition Practice: Nuts and Bolts
You will leave this half-day program immediately prepared to plan and implement more effective depositions. This is a skills building program that covers every aspect of the deposition process, filled with tips on questions that will draw out information, obtain admissions, support motion practice and set up successful cross examination at trial. You will also learn how to prepare your witness to be deposed, conveying information truthfully while avoiding manipulation. Your seasoned presenter and litigator has extensive knowledge and experience, and will provide you with invaluable pointers and information. Trial lawyers of all experience levels will pick up tips, ideas, and insights. This program is about the art as well as the science of discovery practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

7. Direct & Cross Examination and Opening & Closing: Top To-Dos
You know from many a sleepless night and anxious day that your examinations of witnesses, and your openings and closings at trial must be independently effective and collectively coordinate as part of a winning strategy. The best part is that you don’t have to change your style and personality to develop the skills to become more effective in court! This program will be full of tips, methods and suggestions about how to build immediately on your abilities as a litigator to be that much more effective and persuasive right now in your trial practice. This program will help you be a better trial lawyer now and set you on the path to be an even better lawyer as you continue to work on what you will learn in this program. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

6. New Technology for Evidence Preservation: Drones, Black Boxes, and More
Drones, computers in vehicles, and Event Data Recorders (EDRs) have evolved in popularity and sophistication. This program will focus on data to be collected and preserved following an accident, including physical data, electronic data, and photographs. In addition, there will be a review of some of the ethical issues involved including the use of investigators, data collected, and privacy issues.  Relevant Case law and the Colorado Rules of Professional Conduct will be referenced. Order the Video OnDemand here and the MP3 here. Available for 2 general credits.

5. Courtroom Technology & Voir Dire
If you are a litigator, you are always looking for ways to gain the edge in the courtroom: with the judge, with the jury, and with opposing counsel. From pre-trial discovery and depositions through jury instructions and closing argument, every step is vital to winning your case. Watch this half-day homestudy on courtroom technology and voir dire that will give you the edge in your next case. Find out the latest in courtroom technology, voir dire tips, and hear the fascinating case study of the voir dire in the Oklahoma City bombing case! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

4. Preparing the Case for Trial: Motions, Mock Trials, and Motions In Limine
This program explains the benefits of mock trials, including how to prepare for a mock trial and what you will learn; motions practice and oral advocacy, including organization and presentation of arguments, how to interact with the judge, how to handle questions, and how to effectively implement oral persuasion skills; and Schreck challenges and motions in limine, including laying the foundation for admission or striking of expert testimony, the different standards for Schreck challenges and Daubert motions, and how to make effective motions in limine. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

3. E-Discovery 2016
Law and technology intersect on a continuing – and accelerating – basis.  Attorneys in all areas of practice must become familiar with new electronic devices and the media through which they and their clients communicate and conduct business.  At the same time, existing state and federal rules that govern civil and criminal proceedings and the Rules of Professional Conduct must address technologies such as social media, webpages, and shared work places.  Electronic information impacts all aspects of an attorney’s practice, whether litigation, transactional, or otherwise. For example, electronically stored information affects all employers and information governance professionals.  This program is a must-attend for any attorney practicing today and tomorrow. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 1 ethics credit.

2. Collecting Judgments: Strategies for Success
This program presents a practical approach to maximizing your ability to collect judgments within the bounds of the law and ethics rules. Your expert faculty will guide you through the process and let you know the options that are available. They will tell you how, when, and why to select one strategy over another. In addition, you receive a primer on the Fair Debt Collections Practices Act and the perspective of the court. Learn the dos and don’ts of effective and ethical collections practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits and 1 ethics credit.

1. Winning at Trial 2016: Practical Pointers
This is your annual one day trial advocacy program presented by the Colorado Chapter of the American College of Trial Lawyers. Its distinguished faculty are highly experienced litigators and strategists who will share with you practical pointers for winning your clients’ cases. Topics include Jury Selection, Creating Trial Themes and Graphics, Taking Depositions, Opening Statement, Direct Examination, Cross Examination, and Social Media. Don’t Miss This Opportunity to Learn from Those Who Know Trial Law Inside and Out! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits.

Colorado Court of Appeals: Dram Shop Amendments Require Knowledge of Drinker’s Underage Status and Alcohol Consumption

The Colorado Court of Appeals issued its opinion in Przekurat v. Torres on Thursday, December 1, 2016.

Dram Shop Act—Intoxication—Knowledge—Evidence.

Sieck drove Przekurat home from a party in Przekurat’s car. Sieck, who was highly intoxicated at the time of the accident and was under 21 years old, drove at speeds in excess of 100 miles per hour before losing control of the car and colliding with an embankment. Przekurat sustained catastrophic injuries, including brain damage. Przekurat’s father sued the four hosts of the party, claiming they “knowingly provided [Sieck] a place to consume an alcoholic beverage” and thus were liable for his damages under the 2005 amendments to the Dram Shop Act. The trial court granted the hosts’ summary judgment motion.

On appeal, Przekurat argued that the district court erred when it held that C.R.S. § 12-47-801(4)(a)(I) of the Dram Shop Act requires actual knowledge of two separate elements: (1) that the defendant provided a place for the consumption of alcohol by a person under the age of 21, and (2) that the defendant knew that the person who consumed alcohol at that place was under age 21. The statutory requirement of “knowingly” applies to all of the elements of liability under the 2005 amendments. Therefore, the trial court correctly construed the 2005 amendments and also correctly determined that Przekurat failed to demonstrate a disputed issue of material fact regarding the hosts’ knowledge that Sieck was underage and was drinking at the party.

Przekurat next argued that the district court’s summary judgment must be reversed because he offered abundant evidence that the hosts knew that they were hosting an “open” party and providing a venue to underage guests, including Sieck, to drink indiscriminately. Although circumstantial evidence is admissible to prove knowledge under the statute, Przekurat did not offer any evidence, circumstantial or direct, that would permit a reasonable inference that any of the hosts knew Sieck, much less that they knew his age, or that Sieck appeared to be obviously underage.

Przekurat next argued that the district court erred in concluding that it did not have jurisdiction to rule on his motion for reconsideration of summary judgment in favor of the hosts. The Colorado Court of Appeals agreed that the district court erroneously denied the C.R.C.P. 59 motion for lack of jurisdiction, but the error does not require reversal or a remand.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Objection to Prejudicial Evidence Preserved Despite Direct Examination Testimony

The Colorado Court of Appeals issued its opinion in McGill v. DIA Airport Parking, LLC on Thursday, November 17, 2016.

Trina McGill filed a negligence claim against DIA Airport Parking after the side mirror on one of its shuttle buses hit her in the head. Before trial, McGill moved to exclude evidence of a 20-year-old conviction for check kiting, a type of check fraud. The trial court denied her motion under CRE 608(b) but did not address CRE 403. At trial, McGill introduced the check fraud evidence on direct examination. The jury returned a verdict in favor of DIA, and McGill appealed, arguing the trial court erred in admitting the evidence under CRE 608(b) and 403. DIA argued McGill could not challenge the admission because she introduced it first on direct examination.

The Colorado Court of Appeals found that invited error did not apply because McGill did not expressly acquiesce in the trial court’s ruling. Instead, the trial court ruled over her objection that the evidence was admissible, and she strategically introduced it at trial in an attempt to mitigate the damage. The court of appeals also declined to rule that she waived her right to challenge the evidence. McGill’s attempt to counter the effect of the impeachment evidence was not an intentional abandonment of her objection.

The court of appeals evaluated the U.S. Supreme Court’s ruling in Ohler v. United States, 529 U.S. 753, 755 (2000), and found the dissent by Justice Souter persuasive. Because Ohler‘s ruling did not address constitutional issues, it is not binding on state courts. Justice Souter’s dissent asserted that the majority opinion fostered unfairness at trial. The court of appeals agreed, and ruled that when a party has objected to the admission of impeachment evidence, it is unnecessary and unfair to force her to choose between preserving that objection for appeal and pursuing the most advantageous trial strategy. The court therefore concluded that McGill could challenge the trial court’s ruling on appeal.

The court next addressed McGill’s argument that the trial court erred by admitting the underlying facts of her check fraud conviction under CRE 608(b) because the fact that she passed bad checks many years ago was not probative of her character for truthfulness. The court of appeals disagreed, finding that the small amount of the crime and the length of time intervening went to the weight of the evidence, not the admissibility. The court found no error.

The court turned to McGill’s argument that the trial court erred in not evaluating the evidence under CRE 403. The court found that although the trial court did not make express findings, there was nothing to suggest that it had not conducted a CRE 403 analysis. The court noted that because McGill did not argue on appeal that the evidence was inadmissible under the rule, it would not address that argument.

The trial court’s judgment was affirmed.