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Book Review — “Losing Twice: Harms of Indifference in the Supreme Court”

October 4, 2012 by Leave a Comment

Losing Twice: Harms of Indifference in the Supreme Court
by Emily M. Calhoun

In Losing Twice, University of Colorado Law School Professor Emily Calhoun argues that the way judicial opinions are written can cause losing stakeholders to suffer additional, unnecessary harms. Given the topic, the book will be of interest to judges and others who write judicial opinions; however Professor Calhoun’s intended audience is “ordinary citizens.”

Calhoun’s thesis is non-ideological. Debates about originalism, minimalism, and activism are refreshingly absent from her book. Instead, Losing Twice focuses on people—most narrowly the non-prevailing parties in Supreme Court constitutional-rights disputes, and broadly, an array of stakeholders affected negatively by court decisions. These stakeholders come to the court in good faith, with much at stake, making the judicial choice to rule against them “essentially [a] tragic choice.”

Judicial opinions can be written in a way that honors losing stakeholders’ status as citizens or that demeans them; that acknowledges their continuing role in constitutional democracy or that shuts them out; or that respectfully articulates their views on an issue or that trivializes those views. For Calhoun, properly honoring losing parties and positions in judicial opinions is more than just a nice thing for judges to do. Opinions that demean losing litigants, that ignore them (willfully or inadvertently), or that hide behind hyper-technical rationality or “the doctrine made me do it” rhetoric create real harms, not only to the immediate parties but also to judicial legitimacy and democracy.

Calhoun offers the judicial opinions for two abortion cases, Roe v. Wade and Gonzales v. Carhart, as examples of opinions causing harm. Although the outcome in the first case is viewed as a pro-choice victory and the outcome in the second a pro-life one, Calhoun argues that both opinions show an indifference to the constitutional stature and autonomy of women.

Held up as an example of a well-written opinion is retired Denver Judge Jeffrey Bayless’s opinion in Romer v. Evans. According to Calhoun, Judge Bayless carefully laid out the arguments of each side and made a “special effort to address all citizen stakeholders,” not just those identified in the parties’ briefs. Judge Bayless also acknowledged the difficulty and impermanence of his decision and “put himself and his judgments about the legitimacy of the decision at the mercy of his audience.”

Calhoun’s claims are not beyond critique. Given how seldom lawyers—let alone “ordinary citizens”—actually read judicial opinions (something Calhoun seems to acknowledge in her discussion of Roe), the composition of opinions may have little effect on our public knowledge of their meaning, or on how their language is paraphrased and summarized by the media or by other instant and historical intermediaries. Nevertheless, judges, lawyers, and armchair Supreme Court enthusiasts will find Losing Twice to be a thought-provoking read that sheds new light on famous constitutional law decisions and that may inform their own written expression.

Derek Kiernan-Johnson is a legal writing professor at the University of Colorado in Boulder. He teaches legal writing, appellate advocacy, and judicial-opinion writing — (303) 492-5863, derek.kiernan-johnson@colorado.edu.Reproduced by permission. ©2011 Colorado Bar Association, 40 The Colorado Lawyer 114 (August 2011). All rights reserved.

CLE Program: Losing Twice – Harms of Indifference in the Supreme Court with Emily Calhoun

This CLE presentation took place on Monday, October 1. The program will be available as a homestudy in two formats: video on-demand and mp3 download.
Filed Under: CLE Tagged With: , , , , ,

Point Made: How to Write Like the Nation’s Top Advocates

October 20, 2011 by Leave a Comment

Point Made: How to Write Like the Nation’s Top Advocates

by Ross Guberman
338 pp.; $19.95
Oxford University Press, 2011
198 Madison Ave., New York, NY 10016
(800) 451-7556; www.oup.com/us

Reviewed by Charles C. Tucker

Charles C. Tucker is a founding member of Korb Tucker PLLC in Fort Collins, where he represents clients in business, employment, real property, and estate planning matters. He also is The Colorado Lawyer’s Modern Legal Writing columnist—(970) 266-5156, ctucker@korbtuckerattorneys.com. This review was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 79). Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

The legal writer has no shortage of sources to which to turn for advice. The best resources are those that writers can readily put to use. In How to Write a Sentence: And How to Read One,1 law professor Stanley Fish imparts his love of the craft of language with splendid examples from many literary sources. Bryan A. Garner, in The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts,2 uses before-and-after examples to help legal writers cut out the clutter. Judge Aldisert employs a different nuts-and-bolts approach in Winning on Appeal: Better Briefs and Oral Argument,3 and includes many short paragraphs of advice by other federal and state court jurists.

For examples of top-flight writing from actual briefs, though, consult Point Made: How to Write Like the Nation’s Top Advocates, by Ross Guberman. The book bristles with sentences and paragraphs from appellate documents written by nationally known advocates, including President Barack Obama, U.S. Supreme Court Chief Justice John Roberts, and U.S. Supreme Court Justice Elena Kagan.

Guberman directly tackles brief-writing from the lawyer’s point of view. He identifies fifty techniques for achieving the most persuasive effect at every level, from organizing the brief to the choice of individual words. The techniques are pithy and useful, and therefore memorable:

#3. Why Should I Care? Give the court a reason to want to find for you.

#6. Show, Not Tell: Let choice details speak for themselves.

#21. Interception: Claim that a case your opponent cites helps you alone.

#32. Zingers: Use colorful verbs.

Each of the fifty sections is just a few pages long and includes examples and Guberman’s brisk commentary. Each example is shaded and easy to find. A busy reader can read one or two sections at a time or skip from one example to the next.

In contrast to Judge Aldisert’s systematic method, Guberman’s approach is freewheeling and anecdotal and generally directed at more experienced writers. Some experienced appellate attorneys may question whether briefs ought to have the kind of punch and bite that Guberman advocates. For example, he says that rhetorical questions can be used “to great effect” and to “put the court on the defensive”—though he also warns that they can have a “sarcastic and scathing” effect. A greater flaw, perhaps, is that the examples are not accompanied by citations or a table of cases, which hinders readers who may wish to search for the briefs Guberman praises so highly. The index is thin but does include case names and the names of the writers quoted.

Overall, Point Made is fun to read and a remarkable achievement. The examples alone are worth the book’s modest price.

Notes

  1. Fish, How to Write a Sentence: And How to Read One (Harper, 2011)
  2. Scalia and Garner, Making Your Case: The Art of Persuading Judges (Thomson/West, 2008).
  3. Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2d ed., National Institute for Trial Advocacy, 2003).

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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. His legal writing articles are often featured by Legal Connection and can be found here.

Another book written by Ross, The Attorney Toolkit: Standout Legal Writing Every Time, one of the most clear, compact, and concise guidebooks on legal writing in the country, is also available for purchase. Click here for more information.
Filed Under: Practice Management Tagged With: , , , , , ,

New Ethics Opinion: Candor to the Tribunal and Remedial Measures in Civil Proceedings

October 17, 2011 by Leave a Comment

In case you missed it last month, CBA-CLE held a program entitled Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings on September 20, 2011. The program addressed the prohibition against offering false evidence, the duty to take remedial measures, and the duty to correct false statements by the lawyer set forth in Rule 3.3 of the Colorado Rules of Professional Conduct. The program also looked at the knowledge and materiality elements of the Rules, the duration of the lawyer’s duties under the Rule, and the steps that the lawyer must take when confronted with this problem of material false evidence.

Overall, the program was a great way for lawyers to make sure they are in compliance with the ethical rules and to learn how to face these tough ethical dilemmas that are bound to arise at some point in your practice.

And, the program couldn’t have been more timely. After it concluded, the the CBA Ethics Committee released its final, edited version of Formal Opinion 123, “Candor to the Tribunal and Remedial Measures in Civil Proceedings.” It will be published in the December 2011 issue of The Colorado Lawyer, but you can read it here now first. The opinion provides a detailed analysis of the issues, followed by four illustrations designed to provide more practical guidance to lawyers facing these situations.

The homestudy covering these issues is now available as well, in two formats: video on-demand and mp3 download.

Formal Opinion 123 – Candor to the Tribunal and Remedial Measures in Civil Proceedings

Filed Under: Updates Tagged With: , , , , ,

Legal Trends and Best Practices in Class Arbitration, Continued

October 7, 2011 by Leave a Comment

This article summarizes the U.S. Supreme Court decisions in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. and AT&T Mobility LLC v. Concepción, as well as related earlier decisions. The discussion focuses on the effect of those decisions on arbitration jurisprudence. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 47) and will publish in two CBA-CLE Legal Connection blog posts. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Editor’s Note: This segment of the article highlights the AT&T Mobility LLC v. Concepción decision. The authors of this article, Dirk W. de Roos and Russell O. Stewart, along with Jay S. Horowitz, presented a CLE program on this subject and addressed the case as one of the most immediate attacks on class action litigation as it now exists. Are class action lawsuits obsolete? This seminar analyzed the decision and what may be its historic (and potentially almost inconceivable) impact on class action litigation. The program is available as a CLE homestudy in two formats: video on-demand and mp3 download.

By Dirk W. de Roos, Russell O. Stewart

In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., the U.S. Supreme Court held that no party is obligated to submit to class arbitration under the Federal Arbitration Act (FAA) when an arbitration agreement is silent about the parties’ intent to allow for class arbitration. In the later case of AT&T Mobility LLC v. Concepción, the Court held that the FAA preempted California law mandating class actions as a viable arbitration remedy. This article discusses both opinions and their impact on arbitration in the United States.

The AT&T Mobility v. Concepción Opinion

On April 27, 2011, the U.S. Supreme Court, in a case closely followed by class action attorneys, held that the FAA preempts California’s Discover Bank rule, which had held that consumer collective arbitration waivers were unconscionable and unenforceable. Justice Scalia, writing for a majority in AT&T Mobility v. Concepción,55 explained that the California rule mandating the availability of class-wide arbitrations interfered with the FAA’s fundamental purpose of ensuring the enforcement of agreements to arbitrate in an efficient, streamlined procedure. AT&T Mobility fills in the blanks left by Stolt-Nielson and clarifies the Court’s views on class actions and arbitration.

The Discover Bank Rule

Discover Bank v. Superior Court56 involved a consumer arbitration agreement that contained an express waiver of any right to maintain a class action. The California Supreme Court ruled that such a waiver was unconscionable in California if it was used in a consumer context and if the disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small amounts of money.57

The Concepción Facts

Vincent and Liza Concepción signed a contract with AT&T for several cellular telephones. The contract required arbitration of any disputes. The sales agreement further required that claims be brought only in each party’s individual capacity, and not as plaintiffs or class members of any purported class or representative proceeding. In addition, the contract provided that “the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.”58

Balancing the waiver of class-action rights, the AT&T contract contains terms that are unusually favorable to consumers. For example, if there were an arbitration: (1) AT&T was required to pay all costs for non-frivolous claims; (2) the arbitration must take place in the county where the Concepcións were billed; (3) either party could elect to proceed in small claims court; (4) the Concepcións could choose whether the proceedings would be in person, by telephone, or by submittal; (5) AT&T was precluded from ever seeking attorney fees; and (6) if the Concepcións recovered more than AT&T’s last written settlement offer, AT&T was obligated to pay a $7,500 minimum recovery fee and twice the amount of the Concepcións’ attorney fees.

The Ninth Circuit’s View

A dispute arose when the Concepcións were billed $30.22 in sales tax for their “free” telephones. The Concepcións filed a putative class action complaint in the U.S. District Court in Los Angeles, alleging that AT&T had engaged in false advertising by charging sales tax on phones it advertised as free.

AT&T filed a motion in district court to compel arbitration under the FAA. The district court described the contract favorably, observing that the $7,500 minimum recovery fee was a substantial inducement to arbitrate, and finding that consumers who were members of a class “would likely be worse off” if they pursued their claims through class arbitration instead of individually. Nevertheless, the district court concluded that the arbitration agreement was unconscionable under California law because AT&T had “not shown that bilateral arbitration adequately substituted for the deterrent effects of class actions.”59

The Ninth Circuit affirmed, agreeing that the attempted waiver of class action rights was unconscionable.60 In addition, the Ninth Circuit reasoned that the Discover Bank rule merely “placed arbitration agreements with class action waivers on the exact same footing as contracts that bar class action litigation outside the context of arbitration.”61 Because § 2 of the FAA permits arbitration provisions to be declared unenforceable on “such grounds as exist in law or equity for the revocation of any contact,” the Ninth Circuit concluded that California law did not disfavor arbitrations and was not preempted by the FAA.

The Supreme Court’s Reversal

Justice Scalia, writing for five Justices, reversed the Ninth Circuit and held that notwithstanding California law, as a matter of federal law, class action waivers in arbitration clauses are not unconscionable. The Court first recalled that the FAA was adopted by Congress in response to widespread judicial hostility to the arbitration process. The FAA provides in relevant part that state laws disfavoring or refusing to enforce arbitration provisions are preempted. It states:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.62

Under this section, arbitration provisions and agreements must be placed on equal footing with other contracts, and enforced according to their terms. Furthermore, the final phrase of the section permits agreements to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to arbitration or that derive their meaning from the fact that an arbitration agreement is at issue.

The Court noted that the California Supreme Court in Discover Bank held that agreements were unconscionable and unenforceable if: (1) the waiver is found in a consumer contract of adhesion; (2) the setting is likely one of a small amount of damages; and (3) there is an allegation that the party with superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small amounts of money. The Court observed that California courts had frequently applied the Discover Bank rule to find class action waiver provisions unconscionable, and that California judges were more likely to hold unconscionable contracts to arbitrate when compared to other contracts.

The Court began its analysis with the observation that the preemption inquiry becomes complex when a doctrine of general applicability, such as unconscionability, “is alleged to have been applied in a fashion that disfavors arbitration.” As examples, Justice Scalia suggested that states might attempt to prohibit all agreements that fail to provide for judicially monitored discovery. Although such a rule would be generally applicable, it would in practice disfavor arbitration. Other examples might be a state law that declares unconscionable any agreements that fail to follow the Federal Rules of Evidence, or a state law that disallows any agreement that does not permit an ultimate disposition by a jury. These examples have historical analogies in judicial treatment of arbitration before the FAA was enacted in 1925.

Justice Scalia concluded that the overarching purpose of the FAA is to ensure the enforcement of arbitration provisions according to their terms so as to facilitate streamlined dispute resolution proceedings. That being so, the Discover Bank rule requiring the availability of class-wide arbitration interferes with the fundamental attributes of arbitration and thus created a scheme inconsistent with the FAA.

The Court held that the Discover Bank rule violates § 2 of the FAA by imposing an arbitration condition to which both parties had not agreed. The California court’s attempt to limit the rule to contracts of adhesion is essentially meaningless, because “the time in which consumer contracts [are] anything other than adhesion [is] long past.”63 Moreover, the purported limitation that the damage be “small” is “toothless and malleable,” and the requirement of an alleged “scheme to cheat” has no limiting effect. The Court concluded that, faced with inevitable class arbitration, companies would have less incentive to continue to resolve potentially duplicative claims on an individual basis.

The Court found additional support for its holding in Stolt-Nielsen.64 As detailed above, in Stolt-Nielsen, the Court held that an arbitration panel exceeded its power under § 10 of the FAA by imposing class procedures based on policy judgment rather than the arbitration agreement itself or some background principle of contract law. The agreement at issue there could not be interpreted to allow such changes because the “changes brought about by the shift from bilateral arbitration to class-action arbitration are fundamental.”65 Class actions involve absent parties and require different procedures, which makes confidentiality more difficult. Class arbitration, to the extent it is manufactured by Discover Bank rather than consensual, thus is inconsistent with and stands as an obstacle to accomplishment of the purposes of Congress enacting in the FAA.

The Court noted that the switch from bilateral to class arbitration sacrifices one advantage of arbitration—its informality. Indeed, any class action will require procedural formality to satisfy concerns of due process noted in Phillips Petroleum v. Shutts.66 Among other things, the class representative must adequately represent absent class members, and absent members must be afforded notice and an opportunity to opt out of the class. Class action arbitrations also greatly increase the risks to defendants, and the lack of review of arbitration awards makes it likely that errors will go uncorrected. Arbitration is poorly suited to the higher stakes of class litigation, and parties may not contractually expand the scope of judicial review. The majority concluded:

[W]e find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to allow states to force such a decision.67

The Concepción decision concludes by noting that with the favorable dispute resolution procedures in AT&T’s contract, the Concepcións’ individual claim was likely to be resolved, and the Concepcións would be better off pursing their individual arbitration claims instead of participating in a class action.

Conclusion

Concepción makes clear that class action waivers in arbitration clauses are not unconscionable and should be enforced in all fifty states. Concepción is a pro-arbitration decision, and is likely to result in more arbitrations of consumer contracts and greater use of class action waivers such as those used by AT&T. Absent some legislative changes to the FAA’s breadth of preemption, Concepción also may substantially curtail class actions in contractual disputes.

Notes

55. Concepción, supra note 2.

56. Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005).

57. Id. at 162.

58. Concepción, supra note 2 at 2 n.2.

59. Laster v. T-Mobile, USA, Inc., 2008 WL 5216255 (S.D.Cal., Aug. 11, 2008).

60. Laster v. AT&T Mobility LLC, 584 F.3d 849 (9th Cir. 2009).

61. Id. at 857.

62. 9 U.S.C. § 2.

63. Concepción, supra note 2 at 12.

64. Stolt-Nielsen, supra note 1.

65. Concepción, supra note 2 at 13.

66. Phillips Petroleum v. Shutts, 472 U.S. 797, 811-12 (1985).

67. Concepción, supra note 2 at 16-17.

Dirk W. de Roos is a partner with Faegre & Benson LLP in Denver. He focuses his practice on business litigation and insurance law—dderoos@faegre.com. Russell O. Stewart is a partner with Faegre & Benson LLP in Denver. He focuses his practice on litigation—rstewart@faegre.com.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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

Legal Trends and Best Practices in Class Arbitration

October 4, 2011 by Leave a Comment

This article summarizes the U.S. Supreme Court decisions in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. and AT&T Mobility LLC v. Concepción, as well as related earlier decisions. The discussion focuses on the effect of those decisions on arbitration jurisprudence. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 47) and will publish in two CBA-CLE Legal Connection blog posts. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Editor’s Note: This segment of the article highlights the Stolt-Nielsen decision. Dirk W. de Roos, co-author of this article, presented a CLE program on this subject and addressed issues arising out of class action arbitrations and the enforceability of contractual “class action arbitration” waivers. The presentation discussed the fundamentals of class action waivers, judicial enforcement, the status of case law and Colorado law on the issue, and the future of class arbitrations. The program is available as a homestudy in two formats: video on-demand and mp3 download.

By Dirk W. de Roos, Russell O. Stewart

In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,1 the U.S. Supreme Court held that no party is obligated to submit to class arbitration under the Federal Arbitration Act (FAA) when an arbitration agreement is silent about the parties’ intent to allow for class arbitration. In the later case of AT&T Mobility LLC v. Concepción,2 the Court held that the FAA preempted California law mandating class actions as a viable arbitration remedy. This article discusses both opinions and their impact on arbitration in the United States.

Stolt-Nielsen—Facts and Background

Respondent AnimalFeeds International Corp. (AnimalFeeds) supplied ingredients to animal-feed production businesses worldwide.3 AnimalFeeds shipped its ingredients in petitioners’ seagoing vessels.4 The parties conducted business using a standardized contract known as a “charter party,” which governs trade needs between parties in the shipping industry.5 The charter party included an arbitration provision requiring any disputes to be settled in New York using the rules of the FAA.6 Under the agreement, the parties could appeal an arbitrator’s decision in federal court.7

In 2003, an investigation by the U.S. Department of Justice revealed that the petitioners were engaging in a price-fixing conspiracy.8 AnimalFeeds brought suit, alleging antitrust claims against petitioners in the Eastern District of Pennsylvania.9 Other charterers also brought suit and the Judicial Panel on Multidistrict Litigation consolidated the pending actions in the District of Connecticut. The parties then determined that they were obligated to arbitrate the dispute.

In 2005, AnimalFeeds brought arbitration in New York City and sought to represent a class of charterers affected by the price-fixing conspiracy. The parties agreed that a panel of arbitrators would decide whether the charter party allowed class arbitration. The parties also agreed that the charter party remained silent as to the parties’ intent to allow class arbitration. The arbitration panel determined that the agreement allowed for class arbitration, despite its silence on the issue, because no evidence showed intent to preclude class arbitration.

The arbitrators then stayed the arbitration proceeding to allow for judicial review of the decision. The U.S. District Court for the Southern District of New York vacated the decision. The court of appeals reversed the lower court, finding no custom or usage against class arbitration in maritime law.10 The U.S. Supreme Court found in favor of petitioners, vacated the panel’s decision, and remanded the case.11

Legal Conclusions of the Supreme Court in Stolt-Nielsen

The U.S. Supreme Court concluded that the arbitration panel exceeded its authority and that parties must consent to matters of arbitration. These conclusions are discussed below.

The Arbitration Panel Exceeded Its Authority

For a court to vacate an arbitration decision, a standard higher than a mere showing of serious error must be met.12 An arbitrator’s decision may be unenforceable only when he or she “strays from interpretation and application of the agreement,” effectively creating his or her own version of justice.13 A court may vacate the arbitrator’s decision under § 10(a)(4) of the FAA, which limits the arbitrator’s role to interpreting or enforcing a contract, rather than making public policy.14

The arbitration panel based its decision on the fact that the arbitration agreement remained silent and that, as a matter of public policy, an agreement should be construed to permit class arbitration.15 However, the Court noted that the panel failed to look to the FAA, maritime law, or New York law to determine what rule governs when a contract remains silent.16 Rather, the panel analyzed Green Tree Financial Corp. v. Bazzle, a case where the U.S. Supreme Court held that arbitrators must decide when a contract remains silent with regard to class arbitration.17 The panel then relied on cases interpreting Bazzle that broadly construed silent arbitration clauses to allow for class arbitration.

The Court in Stolt-Nielsen found that the panel acted as a common law court, developing what it believed to be the best rule, rather than identifying the intent of the parties and applying the governing rule of law from a relevant jurisdiction.18 Finding that the panel had exceeded its powers under § 10(b) of the FAA, the Court decided the question of class arbitration instead.19

Bazzle Does Not Determine Whether Class Arbitration is Permitted

Bazzle concerned a dispute between a commercial lender and its customers over contracts with arbitration clauses that did not expressly mention class arbitration. In a plurality decision, the U.S. Supreme Court held that an arbitrator, rather than a court, has the power to determine the arbitration issue when a contract remains silent with regard to class arbitration.

The parties in Stolt-Nielsen misconstrued Bazzle by interpreting it as allowing an arbitrator to determine whether a contract permitted class arbitration.20 Instead, the decision held only that an arbitrator may decide if a contract remains silent regarding class arbitration.21 The Court noted that Bazzle did not clarify the first issue, because only a plurality decided that an arbitrator should determine when a contract allows for class arbitration.22 The Court declined to decide the question in Stolt-Nielsen.23 The Court also clarified that Bazzle did not establish a standard for determining whether an arbitration agreement allows for class arbitration.24

Parties Must Consent to Matters of Arbitration

The FAA requires that parties consent to all provisions of an arbitration agreement.25 Section 4 of the FAA allows a party to “petition a United States district court for an order directing that ‘arbitration proceed in the manner provided for in such agreement.’”26 Therefore, the FAA guarantees that arbitration agreements between private parties are implemented under the terms on which the parties intended to agree.27

The Court concluded that parties cannot consent to a contractual agreement without the intent to do so; because both parties concur that the agreement remained silent, the parties did not consent to class arbitration.28 Although an implicit agreement to class arbitration may exist in other cases, the parties here agreed that the contract remained silent.29

According to the Court, class arbitration is significantly different from bilateral arbitration.30 Rather than resolving a dispute between two parties, class arbitration has the potential to include thousands of parties. The presumption of privacy disappears, and the arbitration panel’s award binds present and absent parties.31 In light of the stark differences between class and bilateral arbitration, the Court held that consent to class arbitration is necessary, and the agreement’s silence on the matter could not be construed as consent.32

Judicial Reaction to Stolt-Nielsen

Stolt-Nielsen has influenced multiple cases since it was decided; however, no court has yet analyzed its precedential value. In May 2010, the Supreme Court granted certiorari in American Express Co. v. Italian Colors Restaurant.33 The Second Circuit had held that an arbitration agreement was unenforceable on public policy grounds because it waived class arbitration.34 The Supreme Court remanded the case, directing the Second Circuit to reconsider its decision in light of Stolt-Nielsen.35

In McArdle v. AT&T Mobility LLC, the Northern District of California found Stolt-Nielsen to be a narrow decision. The court held that the FAA does not preempt the California state law that makes arbitration agreements that waive class arbitration unenforceable.36 One court recently observed that Stolt-Nielsen fails to clarify many outstanding questions regarding arbitration, such as which standard to apply when vacating an arbitrator’s award.37

Stolt-Nielsen’s Impact on Arbitration Law

Legal scholars have noted the impact of Stolt-Nielsen on arbitration law. First, the decision raised the question of whether the FAA preempts state laws addressing class arbitration and unconscionability. Many state and federal courts have held class action waivers in arbitration agreements unenforceable as against public policy.38 Many state courts have found barring class arbitration unconscionable because in many circumstances, the parties entering into an agreement hold unequal bargaining power.39 Because the damages for most parties would be small, little incentive exists for an aggrieved party to pursue his or her rights if an agreement bars class arbitration.40

The Court in Stolt-Nielsen did not address whether the FAA preempts state courts from allowing class arbitration under state law, even when an agreement is silent.41 However, as discussed below, the Supreme Court recently decided AT&T v. Concepción, concluding that the FAA preempts states from conditioning the validity of arbitration provisions on the inclusion of specific procedures, including class arbitration.

The Stolt-Nielsen decision implies that the U.S. Supreme Court may prevent the arbitration of public policy issues. The Court noted that an arbitrator must interpret a contract using law from applicable jurisdictions, not create public policy.42 That said, questions of public policy present themselves in commercial arbitration settings when parties argue that the enforceability of a contract is based on public policy.43 By defining the arbitrator’s role as solely applying contract terms, but not analyzing public policy, the Court may have undermined an arbitrator’s power to arbitrate claims and defenses based on public policy grounds.44

The decision may limit the frequency of class arbitration. The Court interpreted the FAA restrictively, limiting arbitration to the explicit scope of the parties’ agreement.45 Previously, many lower courts interpreted the FAA broadly to permit class arbitration, even when an agreement did not specify parties’ intent.46 The Court has made it more difficult for parties to demonstrate intent under the FAA absent an express provision.47 Interpreting the FAA restrictively, the Court narrowed circumstances in which parties may be allowed to use class arbitration.48

Finally, the Court’s application of § 10(b)(4) of the FAA may lead to an increased use of the provision. In vacating the arbitrators’ decision, the Court used the “exceeding powers” standard of § 10(b)(4), rather than the “manifest disregard” standard often used by lower courts.49 Confusion about the manifest disregard standard has existed for some time, but the Court did not address the issue.50 Therefore, other courts likely will follow suit in using the alternative standard of review from § 10(b)(4) to determine when to vacate an award.51

Other Changes in the Arbitration Setting

In June 2010, the U.S. Supreme Court decided Rent-A-Center, West, Inc. v. Jackson,52 where it determined the arbitrability of arbitration clauses in contracts. The Court held that under the FAA, an arbitrator must determine an agreement’s enforceability if an arbitration agreement includes a clause delegating authority to the arbitrator to determine whether the agreement is fair.53 However, a district court may consider challenges to the enforceability of the individual delegating clause.54

Notes

1. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758, 1776 (2010).

2. AT&T Mobility LLC v. Concepción, __ S.Ct. __ 2011 WL 1561956 (April 27, 2011) (slip op.).

3. Stolt-Nielsen, supra note 1 at 1764.

4. Id.

5. Id. at 1764-65, n.1.

6. Id. at 1765.

7. Id.

8. Id.

9. Id.

10. Id. at 1766.

11. Id. at 1777.

12. See id. at 1767, citing E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57 (2000).

13. Id., quoting Major League Baseball Players Assn. v. Garvey, 532 U.S. 504 (2001) (per curiam).

14. Id.

15. Id.

16. Id.

17. Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003).

18. Stolt-Nielsen, supra note 1 at 1769-70.

19. Id. at 1770.

20. Id. at 1772.

21. Id.

22. Id.

23. Id.

24. Id.

25. Id. at 1773.

26. Id., quoting 9 U.S.C. § 4.

27. Id.

28. Id. at 1775.

29. Id.

30. Id. at 1776.

31. Id.

32. Id.

33. Am. Express Co. v. Italian Colors Restaurant, 130 S.Ct. 2401, 2401 (2010).

34. In re Am. Express Merchants’ Litigation, 554 F.3d 300 (2d Cir. 2009).

35. Am. Express, supra note 33 at 2401.

36. McArdle v. AT&T Mobility LLC, No. C 09-1117 CW, 2010 WL 1875812 at *1-2 (N.D.Cal., May 10, 2010).

37. See, e.g., Republic of Argentina v. BG Group PLC, No. 08-485 (RBW), 2010 WL 2264957 at *3 n.7 (D.D.C., June 7, 2010) (noting that the court declined to determine whether an award could be vacated due to “manifest disregard of the law” by an arbitrator).

38. Loree, “Stolt-Nielsen Delivers A New FAA Rule—And Then Federalizes the Law of Contracts,” 28 Alts. to High Cost Litig. 121 (2010).

39. See, e.g., Gentry v. Superior Court, 165 P.3d 556 (Cal. 2007) (holding arbitration clauses that preclude class certification unenforceable).

40. Wolson, “The Law of Unintended Consequences: Did the Stolt-Nielsen Decision Inadvertently Invalidate Millions of Arbitration Provisions?” 241 Legal Intelligencer (2010).

41. See Haines, “Arbitration Ruling Handed Down from the U.S. Supreme Court and California Law,” California Employee Advocate (May 17, 2010), available at www.californiaemployeeadvocate.com/tags/stolt
nielsen-v-animal-feeds-in.

42. Stolt-Nielsen, supra note 1 at 1767-70.

43. Loree, supra note 38.

44. See id.

45. See Stolt-Nielsen, supra note 1 at 1767-70.

46. See id. at 1769 (discussing a consensus among courts that class arbitration is beneficial).

47. See id.

48. See Doyle and Ruben, “Stolt-Nielsen S.A. et al. v. AnimalFeeds International Corp.,” ABA Section of Lab. & Emp. Law (2010), available at www.abanet.org/labor/lel-hottopics/10/stolt-nielsen.html.

49. See Stolt-Nielsen, supra note 1 at 1768-69.

50. See id. at 1768 n.3.

51. See Loree, supra note 38.

52. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. __ (2010).

53. Id.

54. Id.

Dirk W. de Roos is a partner with Faegre & Benson LLP in Denver. He focuses his practice on business litigation and insurance law—dderoos@faegre.com. Russell O. Stewart is a partner with Faegre & Benson LLP in Denver. He focuses his practice on litigation—rstewart@faegre.com.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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

Expanded Media Coverage in Colorado Courts, Continued

September 20, 2011 by Leave a Comment

by Rudy E. Verner, Steven D. Zansberg

This article provides an overview of the constitutional basis for open courts, Colorado’s expanded media coverage rule, and the history of television and other news media gaining access to courtrooms. It also discusses the use of blogging, tweeting, and other forms of new media to report on court proceedings. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 39) and will publish in two CBA-CLE Legal Connection blog posts. The first part of the article can be found here. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Expanded media coverage (EMC) refers to the news media’s use of cameras and microphones to record judicial proceedings, such as a trial, a sentencing hearing, or other court proceeding. Although courtroom proceedings presumptively are open to the public and members of the press, media organizations are required to get permission from the judge before gaining access for EMC. Private attorneys, prosecutors, and state trial judges will benefit from understanding how the EMC process works and the standards governing EMC.

Television Coverage of Federal Court Proceedings

The U.S. judiciary has had a longstanding prohibition on television or other electronic coverage of federal court proceedings by the media. However, recent efforts have been undertaken to broaden access to federal courts, including introduction of a bill in the U.S. Senate to permit television coverage of all open sessions of the U.S. Supreme Court,35 and a decision by the U.S. Judicial Conference to expand a two-year pilot program that made audio recordings of court proceedings available through Public Access to Court Electronic Records (PACER) at a handful of federal district and bankruptcy courts nationwide.36

In 2010, the Ninth Circuit Court of Appeals allowed C-Span to televise oral argument in the Proposition 8 case, the legal challenge to California’s voter-approved ban on same-sex marriage. Beginning in July 2011, fourteen federal trial courts are taking part in a three-year pilot program, which will evaluate the effect of cameras in courtrooms.37 The pilot program—in which Colorado was not chosen to participate—involves participation by more than 100 U.S. district judges, including judges who favor cameras in court and those who are skeptical of coverage.38 Districts volunteering for the pilot program must follow guidelines adopted by a committee of the U.S. Judicial Conference and the program will be limited to civil proceedings in which the parties have consented to having their cases recorded.39

Experience Under the EMC Rule

The first case in which cameras were permitted to cover a criminal trial in Colorado occurred during the experimental program that predated adoption of the prior EMC Canon. In October 1984, Boulder County District Judge Murray Richtel presided over the prosecution of Danny Arevalo, who was convicted of murdering Michael Manning, the three-year-old son of his girlfriend. In the twenty-six years since the Arevalo trial, television stations have been granted access to broadcast portions of criminal and civil trials statewide in Colorado, both live and on videotape. Moreover, many high-profile trials have been televised, along with numerous sentencing hearings, advisements, and arraignments. A number of these cases were appealed, but none has been overturned on the basis that EMC was granted.

In one recent example, Weld County District Court Judge Thomas J. Quammen granted the media’s request for EMC of the sentencing of Vance Fulkerson, the University of Northern Colorado professor who pleaded guilty to making surreptitious video recordings of students using the bathroom in his home. In his ruling, Judge Quammen explained why, in his view, granting EMC coverage of a sentencing hearing furthered the same objectives as opening other judicial proceedings, such as trials and arraignments, to public attendance:

The fact that we have a TV camera or a newspaper representative here doesn’t change the public nature of these proceedings. . . .

Anybody can come in here and observe what is happening. This isn’t my court, this belongs to the people of the State of Colorado. . . .

The People have a right to know not only what the Court does, they have a right to know how the Court does it, they have a right to know how their prosecutors handle cases, and this is up for public review, up for public scrutiny. . . .40

Judge Quammen also explained why the sentencing hearing in that case should not be closed to the public, as the defendant had requested, and again described the role that EMC plays:

Only in very, very defined areas do we take the drastic step of closing a courtroom.

Now the Court is satisfied that there has not been a sufficient showing that there is a clear and present danger to warrant that extreme remedy in this case. . . .

[A]s the Court indicated, what happens here is public information and the people have a right out there to draw whatever conclusions that they want to about what happened, why it happened, and whether it should have happened or not have happened, but they can’t make those decisions, informed decision[s], unless they are informed.

And so the Court finds that expanding the media coverage is not going to interfere with the rights of the parties to be treated fairly and have a fair trial; and in this case, a fair sentencing.41

Numerous other criminal proceedings have been opened to EMC in recent years. For example:

> In 2009, Chief Judge Stephen J. Schapanski of the Larimer County District Court granted EMC for the sentencing of Richard Heene, the Fort Collins man who duped police, the Federal Aviation Administration, and the public into believing that his son had accidentally been carried away by an experimental balloon in an attempt to gain publicity for a reality show pitch.

> In 2008, Judge John Madden II of the Denver District Court granted EMC in the trial of Jon Philips, the custodial father charged with child abuse resulting in death for the forced starvation of 7-year-old Chandler Grafner.

> Former Weld County Chief Judge Roger A. Klein granted EMC in People v. Nelson, the murder trial of the Greeley police dispatcher charged with killing the wife of a police officer with whom she was having an affair.

> In another high-profile case, Denver District Court Judge Christina Habas granted EMC for the sentencing of Lisl Auman, the woman who pleaded guilty to accessory to first-degree murder in the slaying of a Denver police officer, and whose case prompted a national debate on the limits of the felony murder rule.

In the civil arena:

> Retired Chief Judge Larry Naves of the Denver District Court granted the medias request to show live coverage of the trial in Ward Churchill’s wrongful termination and First Amendment retaliation suit against the University of Colorado.42

> A judge has granted EMC in a state enforcement action under the Colorado Consumer Protection Act,43 a suit against the Colorado Rockies for the right to distribute team programs on the sidewalk in front of Coors Field,44 and a defamation and invasion of privacy case brought by a manager of the Denver Athletic Club.45

> Additionally, as noted above, the Colorado Supreme Court has allowed arguments to be televised in Lorenz v. State,46 a case involving the constitutionality of a statute prohibiting public officials from holding interests in gaming establishments.

> The Colorado Court of Appeals permitted television coverage of the arguments in People v. Kriho,47 a case in which a juror was held in contempt for failing to disclose information during voir dire, and People v. Auman,48 an appeal involving the applicability of the felony murder rule to a suspect in police custody.

Denial of EMC

Courts periodically will exercise their discretion to deny EMC requests or impose additional restrictions on coverage to protect a litigant’s rights. Sometimes, the denial or restriction is motivated by a professed concern for the safety of the parties or witnesses. For example, in advance of the trial of Willie Clark, the gang member convicted of murdering Denver Broncos cornerback Darrent Williams, Judge Christina Habas denied EMC for still and video cameras, citing concerns over the safety of witnesses (including one in the federal witness protection program) but granted access for microphones and audio transmission of the trial.49

The EMC Rule in Practice

Practitioners faced with a request for EMC should consult the standards for granting coverage in subsection (a)(2) of the EMC rule50 and the procedures for filing an objection in subsection (a)(6).51 Because the facts and circumstances of criminal matters tend to vary significantly, there are no standard grounds for opposing EMC. In the past, defendants have argued that photographs or video showing them entering a not guilty plea or appearing in prison clothes during an advisement or arraignment could taint the pool of potential jurors and substantially prejudice their right to a fair trial. Also, concerns are frequently raised that the presence of cameras will have a chilling effect on a witness’s willingness to testify openly and fully about the events at issue. Finally, counsel has objected on grounds that allowing video coverage will cause opposing counsel to “play to the camera” and foster a “circus atmosphere” by encouraging inflammatory sound bites and histrionic performances, above and beyond what would be done for the benefit of the seated jurors and others attending the trial.

By and large, such grounds have not been deemed a sufficient basis to deny EMC. Judges have on occasion imposed limitations on EMC by, for example, prohibiting the media from recording the testimony of minors or sexual assault victims. However, judges have not required the news media’s representatives to be present during the entire course of a trial, rejecting claims that such a requirement was necessary to avoid the impression on the part of jurors that a certain witness’s testimony should be afforded greater weight than others.

New Media Coverage of Judicial Proceedings

In advance of the Supreme Court’s 2010 rule change, there had been some preliminary discussion about extending the EMC rule to Blackberries, iPhones, and other electronic devices that allow live text transmission—but not video, photographs, or audio from the courtroom. Reporters and members of the public increasingly use Twitter, blogs, and other forms of new media to report on judicial proceedings. The Supreme Court did not extend the Rule 2 requirements to these relatively novel methods of reporting. Therefore, tweeters, bloggers, and other reporters sending live text transmissions generally do not need to seek permission from the court before reporting on a trial or hearing. However, such persons should be aware of any standing orders from the court in a given case regarding the use of such technology.

Recent experience with live text transmission in Colorado courtrooms has been positive. For example, the Greeley Tribune blogged live from the trial of Shawna Nelson, the Greeley police dispatcher convicted of killing the wife of a police officer with whom she was having an affair. The Tribune reportedly experienced a record number of hits to its website during the trial,52 bolstering the role of blogging as an effective tool for reporting on high-profile trials. A number of other recent trials have been successfully covered by live blogging from the courtroom, including the trial concerning the firing of CU professor Ward Churchill and, from a “spillover” courtroom, the murder trial of Willie Clark.

Conclusion

EMC in Colorado has been successful for more than two decades; as a result, Colorado citizens have had the opportunity to observe first-hand the workings of the state’s judicial system. Colorado’s recently re-adopted EMC rule facilitates the people’s constitutional right to “attend” judicial proceedings and does not specifically require users of new media technology to gain permission from the judge to report on courtroom proceedings. As video and audio signals continue to be disseminated over more convenient and accessible platforms—from streaming video over websites to mobile digital television—the citizens of Colorado will have additional opportunities to monitor the conduct of their government, ensuring that the Founders’ vision for a transparent and account able system of justice is not lost.

Notes

35. See Bill to Permit the Televising of Supreme Court Proceedings, S. 446, 111th Cong. (2010).

36. “Judicial Conference Moves Federal Courts Toward More Public Access,” available at www.law.com/jsp/article.jsp?id=1202446305242.

37. “14 U.S. Courts, Not Colorado, Will Pilot Courtroom Cameras,” available at www.lawweekonline.com/2011/06/14-u-s-courts-not-colorado-will-pilot-courtroom-cameras.

38. Id.

39. Id.

40. People v. Fulkerson, Case No. 09-CR-1187, 38 Med.L.Rptr. (BNA) 1513 (Weld Cty. Dist. Ct., March 3, 2010) (reporter’s transcript of motions hearing on file with authors).

41. Id.

42. Churchill v. Univ. of Colorado, Case No. 06-CV-11473 (Denver Dist. Ct., Nov. 24, 2010).

43. Martinez, supra note 18.

44. Lewis v. Colorado Rockies Baseball Club, Ltd., 941 P.2d 266 (Colo. 1997) (Judge Herbert Stern III).

45. Roberts v. Scheriff, July 1995 (Judge Edward Simons).

46. Lorenz v. State, 928 P.2d 1274 (Colo. 1996).

47. People v. Kriho, 996 P.2d 158 (Colo.App. 1999).

48. People v. Auman, 67 P.3d 741 (Colo.App. 2002), rev’d, 109 P.3d 647 (Colo. 2005).

49. Judge Habas also imposed a strict prohibition on photography outside the courtroom and in the hallways of the fourth floor of Denver’s City and County Building while court was in session. Although blogging and tweeting were prohibited from the courtroom, in this case they were permitted from the nearby spillover courtroom. Judge Habas later authorized still and video photography EMC for Willie Clark’s sentencing hearing.

50. See Rule 2(a)(2)(A) to (C).

51. See Rule 2(a)(6).

52. See Machuca, “Web readers can’t get enough of Shawna Nelson trial,” The Tribune (March 3, 2008), available at www.greeleytribune.com/article/20080303/NEWS/329307688&parentprofile=search.

Rudy E. Verner is a civil litigator at Berg Hill Greenleaf & Ruscitti L.L.P. in Boulder. Steven D. Zansberg is a civil litigator at Levine Sullivan Koch & Schulz, L.L.P. in Denver.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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

Expanded Media Coverage in Colorado Courts

September 13, 2011 by 1 Comment

by Rudy E. Verner, Steven D. Zansberg

This article provides an overview of the constitutional basis for open courts, Colorado’s expanded media coverage rule, and the history of television and other news media gaining access to courtrooms. It also discusses the use of blogging, tweeting, and other forms of new media to report on court proceedings. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 39) and will publish in two CBA-CLE Legal Connection blog posts. The second part of the article can be found here. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Expanded media coverage (EMC) refers to the news media’s use of cameras and microphones to record judicial proceedings, such as a trial, a sentencing hearing, or other court proceeding. Although courtroom proceedings presumptively are open to the public and members of the press, media organizations are required to get permission from the judge before gaining access for EMC. Private attorneys, prosecutors, and state trial judges will benefit from understanding how the EMC process works and the standards governing EMC.

This article provides an overview of the constitutional basis for open courts, the current Colorado EMC rule, and the history of television stations and other news media gaining access to courtrooms. The emergence of blogging, tweeting, and other forms of new media to report on court proceedings also is briefly discussed.

The Constitutional Right of Access to Court Proceedings

In four landmark cases decided in the 1980s, the U.S. Supreme Court established that the press and general public have a constitutional right of access to criminal trials and related judicial proceedings.1 Although this right is not expressly granted by the U.S. Constitution, the Court reasoned that the right to attend criminal trials is a fundamental right indispensable to the enjoyment of other, enumerated rights. A brief description of this constitutional guarantee provides context for understanding Colorado’s EMC rule and the news media’s right to petition courts for expanded coverage of court proceedings.

In Richmond Newspapers, Inc. v. Virginia, the Supreme Court explained that the freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government.2 The Court found that in guaranteeing freedoms such as those of speech and press, “the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.”3 The right to freely receive information and ideas means, in the context of trials, that the First Amendment guarantees of speech and press, “prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted.”4

Moreover, the Supreme Court found that the First Amendment’s right of free assembly is relevant, having been regarded “not only as an independent right” but also as a “catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen.”5 Therefore, the Court concluded:

a trial courtroom is a public place where the people generally—and representatives of the media—have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.6

The Supreme Court also has observed that public access improves the functioning of an adversarial trial system by, among other things, ensuring that proper procedures are being followed, encouraging those with information to come forward, and creating incentives for all participants to perform well.7 Public access also discourages perjury, misconduct, and bias, and in this respect “is an effective restraint on possible abuse of judicial power.”8 By permitting the public to serve as a check on the judicial process, the right of access “enhances the quality and safeguards the integrity of the fact finding process.”9 Indeed, direct, first-hand observation of the judicial system fulfills the constitutional aspiration of the Framers for a transparent and accountable system of justice:

It is desirable that the trial of causes should take place under the public eye . . . because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.10

Public access to judicial proceedings improves the actual operation of the justice system and improves the appearance of justice. As the U.S. Supreme Court explained in another seminal case:

The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.11

Of course, in modern times, the vast majority of Americans do not acquire information about trials by first-hand observation, but instead “people now acquire it chiefly through the print and electronic media. In a sense this validates the media claim of functioning as surrogates for the public.”12

Although no court has yet recognized a First Amendment right to bring a camera or microphone into a courtroom,13 Colorado’s EMC rule is a powerful mechanism to facilitate the people’s constitutional right to “attend” judicial proceedings. When a camera and/or microphone is allowed into the courtroom to record or broadcast the testimony of witnesses and arguments of counsel, people who cannot be present at the courthouse are provided an opportunity to witness, first-hand, the workings of the judicial system.

Rule 2: The New EMC Canon

Before the enactment of Colorado’s first EMC rule, district court judges were authorized to grant access to the courtroom for cameras and microphones, but only in the event no witness or juror objected to being photographed or recorded.14 In practice, this meant that any participant in a trial or court proceeding had veto authority over EMC; as a result, the news media stopped seeking permission for such access and Colorado’s courtrooms were effectively closed to still photography and broadcast media. In June 1983, the Colorado Supreme Court authorized an experimental program for EMC in the courts. As a result of that experimental program, a revised Canon of Judicial Conduct was proposed.

Adopted in 1985, Canon 3(A)(8) of the Colorado Code of Judicial Conduct set forth the standard courts were to apply in determining whether EMC should be granted for a particular trial or hearing. The EMC Canon, as the rule came to be called, also placed certain conditions on EMC and established procedures the media had to follow to obtain authorization for such coverage. The television and print media have had a successful twenty-five-year experience operating under Canon 3(A)(8) of the Code of Judicial Conduct.

In 2010, the Colorado Supreme Court amended and adopted Rule Change 2010(14), which re-enacted, effective July 1, 2010, the pertinent provisions of Canon 3(A)(8) as a rule of court procedure.15 This new “Rule 2″ is found in Chapter 38 of the Colorado Court Rules. Except as renumbered, Rule 2 is identical to former Canon 3(A)(8) of the Code of Judicial Conduct and provides that a judge may authorize EMC of court proceedings, subject to certain guidelines set forth in the rule.16

The first subsection of the rule defines certain terms relevant to requests for EMC. It defines “expanded media coverage” as “any photography or audio recording of proceedings” and defines “proceeding” as “any trial, hearing or any other matter held in open court that the public is entitled to attend.”17 Although the majority of EMC requests involve access to criminal trials or other criminal proceedings, the rule clearly allows for such requests to be made in the context of civil trials and other proceedings in which the public and press are interested.18

Subsection (2) states that, when determining whether EMC should be permitted, judges shall consider three factors: (1) whether there is a reasonable likelihood that EMC would interfere with the rights of the parties to a fair trial; (2) whether there is a reasonable likelihood that EMC would unduly detract from the solemnity, decorum, and dignity of the court; and (3) whether EMC would create adverse effects that would be greater than those caused by traditional media coverage.19

Subsection (3) contains several limitations on EMC. It states that there shall be (1) no EMC of pretrial hearings in criminal cases, except advisements and arraignments; (2) no EMC of jury voir dire; (3) no audio recording or “zoom” closeup photography of bench conferences; (4) no audio recording or closeup photography of communications between counsel and client or between co-counsel; (5) no EMC of in camera hearings; and (6) no closeup photography of members of the jury.20

The following subsection provides that the judge may restrict or limit EMC “as may be necessary to preserve the dignity of the court or to protect the parties, witnesses, or jurors.”21 To this end, the rule provides that the judge may terminate or suspend EMC at any time on making findings of fact that:

(1) rules established under this Canon or additional rules imposed by the judge have been violated; or (2) substantial rights of individual participants or rights to a fair trial may be prejudiced by such coverage if it is allowed to continue.22

The final subsections set forth the conditions under which EMC must be conducted and the procedure for filing a request. Subsection (5) includes limitations on the type of equipment that may be used, directs the media to designate a representative for the purpose of coordinating a pooling arrangement for all interested media, and sets forth standards of conduct for all media representatives in the courtroom.23 Subsection (6) sets forth procedures for submitting a request for EMC and filing an objection to such a request. It provides that a written request for EMC must be submitted to the judge at least one day before EMC is requested to begin, unless a longer or shorter time is required or permitted by the judge.24

Practitioners filing requests for EMC should check to see whether there are any additional rules or requirements imposed by the judicial district where the case is being heard. For example, the Twentieth Judicial District (Boulder County) has adopted a local rule to implement Rule 2 and its website provides a link to an approved form for EMC requests.25

People v. Wieghard: A Presumption in Favor of EMC

Only one Colorado appellate court decision has addressed the issue of allowing television cameras in the courtroom.26 In People v. Wieghard,27 the trial court had held that the presumption under Canon 3(A)(8) (now Rule 2) was in favor of open coverage and that a party opposing such coverage would have the burden of proving adverse effects therefrom.28 In affirming the defendant’s conviction for first-degree murder, the Colorado Court of Appeals held that the trial court did not abuse its discretion in permitting EMC, stating that “[t]he mere presence of a camera in the courtroom does not in itself deny a defendant due process.”29 Although it did not undertake an exhaustive analysis of the EMC rule, the Wieghard court held that the trial judge did not err when he applied a presumption in favor of allowing EMC, a presumption that can be rebutted only if the defendant shows that the coverage interfered with his or her right to a fair trial. The language of Wieghard also suggests that a trial court should receive evidence and hold a hearing before making its determination.30

The Colorado Supreme Court and EMC

The Colorado Supreme Court has not had occasion to hear a case in which EMC under Rule 2 or its predecessor Canon of Judicial Conduct was a basis for appeal. This state’s highest court has, however, made several public statements regarding the importance of open courts and the educational benefits of allowing the public to watch judicial proceedings.

In 2002, Chief Justice Mary Mullarkey entered an Order that allowed trial courts in the state to waive all restrictions of the EMC rule and allow a national television network to videotape and broadcast entire criminal proceedings, including trial preparation, pretrial motion hearings, jury voir dire, and even jury deliberations.31 The former Chief Justice was quoted as saying that she was “convinced that the benefits of opening up the courts outweighed the disadvantages.”32

Former Justice Rebecca Love Kourlis similarly stated that:

The Supreme Court’s support of this program reflects the high priority we place on public education and jury reform. We believe that we do have a responsibility to educate the public about what really goes on in the courts and criminal trials specifically, and this program serves that goal.33

Consistent with these sentiments, the Colorado Supreme Court has allowed one oral argument to be televised and permitted audio recordings of both its oral arguments and those of the Court of Appeals to be streamed and archived online.34

Notes

1. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, and n.17 (1980) (news media and members of public possess First Amendment right to observe criminal trials); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (recognizing right to attend testimony at criminal trial of minor victim of sexual offense); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise Co. I) (right to attend voir dire examinations of jury venire in criminal case); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (right to attend preliminary hearing in criminal case).

2. Richmond Newspapers, Inc., supra note 1 at 575.

3. Id.

4. Id. at 576.

5. Id. at 577.

6. Id. at 578.

7. Id. at 569-70.

8. Id. at 592 (Brennan, J., concurring) (citation and internal quotations omitted).

9. Globe Newspaper Co., supra note 1 at 606.

10. Gannett Co. v. DePasquale, 443 U.S. 368, 429 n.10 (1979) (Blackmun, J., concurring in part and dissenting in part), quoting Cowley v. Pulsifer, 137 Mass. 392 (1884) (Holmes, J.) (emphasis added).

11. Press-Enterprise Co. I, supra note 1 at 508.

12. Richmond Newspapers, Inc., supra note 1 at 572-73. See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975) (“in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he necessarily relies upon the press to bring him in convenient form the facts of those operations”); Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (the press “guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism”).

13. One court has expressly rejected the claims of a First Amendment-based “right” to televise trials. See Courtroom Television Network LLC v. New York, 5 N.Y.3d 222 (2005) (noting that in the twenty-five years since Chandler v. Florida, 449 U.S. 560 (1981), which held that televised trials do not violate due process, “no Federal Circuit Court has opined that the Federal Constitution guarantees the media a right to televise trials”). Recently, the U.S. Supreme Court granted a stay prohibiting “televising,” to five federal courts, the trial challenging the constitutionality of California’s Proposition 8. See Hollingsworth v. Perry, __ S.Ct. __, 2010 WL 105264 (Jan. 13, 2010). Although the stay was grounded exclusively on procedural grounds, in that 5–4 ruling, the majority expressed significant concerns about the effect of televising witness testimony. See id. at *7. Nevertheless, the majority opinion recognized that “the arguments in favor of developing procedures and rules to allow broadcast of certain cases have considerable merit.” Id. at *8.

14. See In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465 (Colo. 1956).

15. See www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes/2010.cfm.

16. The Code of Judicial Conduct is an appendix to the Colorado Rules of Judicial Discipline, found at Chap. 24 of the Colorado Court Rules (Rules) (West Pub., 2009). The Code contains fourteen Canons, delineated as Canons 1 through 9.5.

17. Rule 2(a)(1)(A) and (C).

18. For example, expanded media coverage has been granted in a disciplinary proceeding involving allegations that a district attorney had lied and threatened prosecution to gain advantage in a civil case (People v. Chambers, Case No. 06PDJ036 (Dec. 26, 2006)), and in an enforcement action brought under the Colorado Consumer Protection Act involving alleged fraud by a building contractor (State v. Martinez, June 2005) (Judge Don Marshal).

19. Rule 2(a)(2)(A) to (C).

20. Rule 2(a)(3)(A) to (F).

21. Rule 2(a)(4).

22. Id.

23. Rule 2(a)(5)(A) to (C).

24. Rule 2(a)(6). The Office of State Court Administrator has prepared a form to request expanded media coverage (EMC), available at www.courts.state.co.us/userfiles/File/Media/rqst_exp_media.doc.

25. See Twentieth Judicial District Administrative Order 02-102 dated Sept. 9, 2009, Re: Expanded Media Coverage of Court Proceedings, available at www.courts.state.co.us/Media/Index.cfm. This Order alters the time frame for submitting EMC requests and objections under the Canon as follows:

(c) A written request for coverage, using the attached Request for Expanded Media Coverage of Court Proceedings, must be in possession of the assigned judge per the following unless a longer or shorter time is required or permitted by the judge:

(1) By 11:00 a.m. on the advisement date;

(2) At least 48 hours before the scheduled arraignment;

(3) At least 2 weeks prior to the scheduled trial date;

(4) At least 2 weeks prior to the scheduled sentencing date.

(d) Objections must be submitted, in writing, directly to the assigned judge per the following unless a longer or shorter time is required or permitted by the judge:

(1) By noon on the advisement date;

(2) At least 24 hours before the scheduled arraignment;

(3) At least 5 days prior to the scheduled trial date.

26. This is likely due to the fact that only a party to the case, and not the media, can appeal a decision concerning expanded media coverage. Canon 3(A)(8)(f).

27. People v. Wieghard, 727 P.2d 383 (Colo.App. 1986).

28. Id. at 386.

29. Id., citing Chandler, supra note 13.

30. Id. (noting that “[a] hearing was conducted” and that “[c]ounsel were given an opportunity to present evidence”).

31. Order dated Oct. 10, 2002 from Office of the Chief Justice, Permitting Electronic and Photographic Access to Court Proceedings (on file with the authors). This was an extraordinary situation, because a typical EMC request does not seek a waiver of the restrictions in Rule 2.

32. “ABC to Eavesdrop on Colorado Trials,” The Denver Post A1 (Dec. 12, 2002).

33. Id.

34. See www.courts.state.co.us/Courts/supreme_court/oral_arguments/index.cfm; www.courts.state.co.us/Courts/court_of_appeals/oral_arguments/index.cfm.

Rudy E. Verner is a civil litigator at Berg Hill Greenleaf & Ruscitti L.L.P. in Boulder. Steven D. Zansberg is a civil litigator at Levine Sullivan Koch & Schulz, L.L.P. in Denver.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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CBA 2010 Economic Survey Results: Colorado Law Practice Economics

August 24, 2011 by Leave a Comment

Over a period of three weeks during June 2011, the Colorado Bar Association (CBA) conducted a survey of the Colorado legal community related to the economics of law practice in the state. Survey questions pertained to activity in 2010 and were based on questions asked in previous CBA economic surveys that also had been created, in part, by the CBA Law Practice Management Department. The survey was sent to all CBA members.

The CBA is grateful to the 1,771 members who participated in the 2011 survey. The CBA invites members to review the entire report, which can be viewed here.

Design of the Economic Survey

The CBA Economic Survey was divided into two parts. The first part studied incomes and work statistics of responding attorneys. The second part sought practice information from practice administrators and those who may not carry that title but who manage the day-to-day operations of smaller practices.

The survey tracked attorney income by location, practice size, type of practice, years in practice, and age of member. This summary generally discusses survey results in these categories. Also, because the CBA was able to factor in data from two previous economic surveys, it was possible to compare information over an eleven-year period.

Attorney Income

Attorney income has increased since 2007 in all except one of the eleven practice locations. Metropolitan Denver (excluding downtown Denver) had a slight decrease in income (.3%); all other geographical areas in Colorado show an increase of annual income (ranging between 1.7% and 5.8%). The greatest increases in income occurred in Pueblo, El Paso, Larimer, and Weld Counties. Attorneys in downtown Denver recorded the highest income.

Practice and Work Habit Trends

Working trends were tracked in some detail. Again, data that had been collected in three surveys (and eleven years) were studied. The following trends occurred over the eleven-year time frame:

  • hours worked are up—not for everyone, but for enough firms to affect the average
  • hours billed are down—showing a significant decrease since the last survey
  • pro bono hours are up across the board
  • full-time and part-time nature of the work force is unchanged
  • the pay gender gap has narrowed and is partially explained by wide differences in years in practice between men and women
  • there is little employee pay growth; compression is evident
  • charged rates have not changed significantly
  • hourly billing still is the most common practice, with one-third of responding firms offering contingency billing
  • age of the work force has not changed significantly, but rate of new employees entering the work force exceeds retirement rates
  • marketing practices vary by firm size, but developing referrals is the most important initiative, and firms of all sizes are focusing on this
  • credit card payments are accepted among large firms (36.9% of all firms report accepting them).

Financial Results and Trends

Firms of all sizes report good profits: 72.2% (of the firms) report an increase in profit (of 5% or more) in calendar year 2010 over calendar year 2009.

  • 41% of firms report that business has increased “during the last two months,” and only 15% report diminished business during this period
  • 56% of firms report that they have undertaken some cost-cutting, but only 7% report payroll cuts
  • non-attorney labor was pegged between 13% and 16%; some larger firms are driving down attorney labor costs by investing in support personnel to keep attorneys doing legal work
  • receivables do not appear to be a significant problem, but smaller firms are taking longer to collect—21% of receivables are collected over ninety days
  • realization rates vary with firm size, but generally are good.

Conclusion

Attorney incomes are growing, firms are showing a good level of profitability, and revenues are either staying the same or showing recent growth. Overall, the statistics in this study paint a very positive picture of the economics of law practice in Colorado. The CBA is pleased to provide this information to its members.

Reproduced by permission. ©2011 Colorado Bar Association, 40 The Colorado Lawyer 25 (September 2011). All rights reserved.

James H. Rohrer is with The Loyalty Partners, Evergreen—cbasurvey@theloyaltypartners.com. The CBA Economic Survey was supervised by the CBA Law Practice Management and Risk Management Department—reban@cobar.org, and the CBA Communications and Marketing Department—hclark@cobar.org.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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Stacey L. Bowers: Free and Low-Cost Online Legal Resources

August 4, 2011 by 1 Comment

There are an abundance of free or low-cost legal research sites available on the Internet. Some sites provide all of their content for free; others provide a mixture of free and fee-based information. Although each site is different, there can be significant overlap among the materials available.

Many of the free sites are “mega-sites,” which are ideal for accessing a wide range of information. Many universities and nonprofit organizations also provide legal resources on their sites, either as a free service to the public or as a free service to paying members. Government sites also are valuable for free legal research at both the federal and state levels.

This article discusses a few key sites from each of these categories. It provides an overview of the site, as well as some background information and the type of information that can be located through each resource.

Mega-Sites

Legal mega-sites provide access to a wide variety of information, including summaries of legal topics, cases, statutes, legal news, and directories of legal professionals and experts. Two of the most well-known mega-sites are FindLaw and Justia. Neither site charges users to access its content.

FindLaw

FindLaw, which is owned by Thomson Reuters, claims to be the “world’s leading provider of online legal information” and initially was launched in 1996 by two attorneys. FindLaw maintains two versions of its site—one for the public and one for legal professionals. Though each version is a comprehensive portal to legal information, this discussion will focus on the version for legal professionals.

FindLaw provides a number of high-level options for searching or browsing cases and codes, practice management topics, jobs and careers, legal news, legal blogs, and service providers. It also offers a number of “quick links” that lead users directly to main points of interest, including forms, law technology information, and newsletters. The newsletter quick link also contains case summaries and blogs.

From the home page, researchers can use the general search box to search across the entire site and retrieve the broadest number of results. A section called “Research the Law” allows users to narrow their search to find specific cases, contracts, or articles. The home page also enables users to browse research materials by type, jurisdiction, or practice area, and to review the latest blog posts and legal news headlines.

The “Cases & Codes” section provides access to federal laws, U.S. Court of Appeals opinions and resources, federal trial courts, and state resources. Coverage varies depending on the court. Additionally, researchers can use the “Search Opinion Summaries” feature to look for specific legal topics in selected courts.

Consider using the advanced search option when searching from the home page or from the cases and codes section. Use the operators AND, OR, and NOT and the proximity locator NEAR, which searches for terms within fifty words of one another. Use the asterisk (*)—which acts as the truncation symbol—to find multiple roots for the indicated search term.

Justia

Justia’s mission is to “advance the availability of legal resources for the benefit of society,” and its site is “focused on making primary legal materials and community resources free and easy to find on the Internet.” From the home page, users can search the entire Justia site by using the keyword search box, or can limit their search to a specific legal practice area by clicking on an area of law listed. Selecting a specific legal practice area brings up a custom search box, as well as an overview of the practice area and related information, including Web resources, important cases, legislation and regulations, articles, and news.

The Justia home page also has a legal research section where users can gain access to information regarding cases and codes, federal and state courts, federal and state government, blogs, legal forms, and podcasts. A section discussing cases that are currently in the news is accessible through the home page, as well.

Justia maintains a U.S. Supreme Court Center that is useful when researching information or cases at this level. It can be accessed by clicking on the “more” tab on the home page. Justia also provides the option to search dockets and court filings, which also is located under the “more” tab.

A unique feature of Justia is its Latin America section. Here, researchers can access laws, codes, and cases for Mexico and countries in Central and South America. Most of this information is provided in the specific country’s language but can be translated into English by clicking the “translate” button on the Google toolbar. Keep in mind that when using any type of free translation service, there may be nuances that are lost or errors in translation that may occur.

When searching in Justia, use the operators AND and OR. A space between keywords defaults to the use of the AND operator. To exclude a term from the search query, place a minus sign (-) directly to the left of the term to exclude, with no space in between.

Additional Mega-Sites

In addition to FindLaw and Justia, mega-sites worth exploring are MegaLaw, the Public Library of Law, LexisOne Community, HG, LexisNexis InfoPro—Zimmerman’s Research Guide, and Google Scholar. As with any resource, users will discover that one is more valuable than another for particular types of research.

University and Nonprofit Organization Sites

Many universities and nonprofit organizations provide legal information online. Some organizations provide free access to all of the information on their site; others require membership to gain full access to their legal research tools.

Cornell’s Legal Information Institute

One of the best sites is the Legal Information Institute (LII), which is hosted by the Cornell University Law School. The site was created to further the school’s belief that “everyone should be able to read and understand the laws that govern them, without cost.” To that end, LII publishes laws, creates materials that help assist in understanding the law, and explores technologies that allow people to find the law easily.

Unlike many home pages on legal research sites, the LII page is clutter-free and easy to navigate due to its simplicity. From the home page, researchers can use the keyword search box to search across the entire site or can choose to explore one of LII’s sections in more depth.

Within the site’s “Read the Law” section, researchers can access both federal and state constitutions, laws, codes, statutes, and cases. Where applicable, the site provides links to other sites where this information is available, rather than creating a repository for the data. The “Popular Topics” section allows users to explore specific legal topics. In many instances, LII provides a narrative overview of the topic and supplies a list of relevant resources, including applicable statutes, recent court decisions, and other key Internet resources. In the “Learn More” section, searchers can access the online legal dictionary called Wex, the Supreme Court bulletin, the annotated U.S. Constitution, and the LII legal blog. LII also has sections to assist in locating a lawyer, asking a question, or following the site via a social network.

When searching within LII, use the operators AND, OR, and NOT. If an operator is not indicated, the default is AND. The asterisk (*) acts as the truncation symbol and finds multiple roots of the search term.

American Bar Association

Although the American Bar Association (ABA) is member-driven, the organization’s site contains both free and fee-based information. From the home page, researchers can use the keyword box to search the entire site. The home page also provides relevant news stories, a list of upcoming ABA events, and links to popular resources.

The “Resources for Lawyers” tab directs users to a page where they can access the career center, search practice management information, locate information based on the type of practice setting, and access the ABA Model Rules of Professional Conduct. Within the practice setting area, there is a section dedicated to solo practitioners that contains useful information. By clicking on the “Publications & CLE” tab, researchers can access the newsletters section. Many of these newsletters are available for free to non-ABA members.

Additional Nonprofit Sites

The Colorado Bar Association (CBA) website offers a variety of legal information in its “For Lawyers,” “For the Public,” and “From the Courts” sections. Some of the information is available for free to anyone, and some of it is available only to CBA members. Other resources to check are local state bar associations, the American Association for Justice site, and the WWW Virtual Library—Law site.

Government Sites

Most federal and state government entities maintain a website. These sites include general information about the entity and often more specific information about that particular area of the law. Government sites can be very useful for legal research, because they have a more targeted focus.

Agencies

Government agency sites generally include the relevant rules and regulations, administrative decisions, laws, forms, and staff directories pertinent to the applicable legal area. The official sites for the U.S. government and the Colorado state government contain a list of all the federal and state agencies, respectively. In addition, the U.S. Government Manual contains a listing of all federal agencies, including information regarding the formation of the agency and its enabling legislation, a brief description of the agency and its responsibilities, the organizational structure of the agency, contact information, and other relevant facts. Users can search or browse the Manual, and its content is updated on an annual basis.

Researchers will find that some agency sites are better structured and easier to search than others. When encountering a site that seems particularly difficult to search, users should consider using the Google advanced search option. The Google advanced search page allows users to create a search query and specify the domain for the search by including the desired URL in the specified box.

Conducting legislative history research often is a difficult and time-consuming task. When engaging in federal legislative research, two of the best sites to consult are FDsys, the new online version of the Government Printing Office, and Thomas, provided by the Library of Congress. At the state level, researchers should consult the Colorado General Assembly site for information regarding legislation, as well as the Colorado Legislative Council site.

Court Websites

Other useful government-produced websites are those for particular courts. At the federal level, the U.S. Courts site is an excellent starting point. From the “Federal Courts” tab, researchers can access links to all the federal courts, including the U.S. Supreme Court, Courts of Appeals, District Courts, Bankruptcy Courts, and Courts of Special Jurisdiction. Under the “Rules & Policies” tab, researchers can find information on federal rulemaking, codes of conduct, and subpoena regulations. Within the “Forms & Fees” area, users can access information regarding various filing fees and a variety of free forms. Under the “Court Records” tab, users can find a link to PACER, the system that provides access to federal case files and dockets.

At the state level, the Colorado State Judicial Branch site provides access to the Colorado appellate and trial courts. From the home page, researchers can access a wealth of information, including court opinions, the self-help library (which contains forms), the e-filing system, and court dockets.

Conclusion

There are an overwhelming number of free and low-cost legal resources available on the Internet. This article has provided an overview of some of them. Users often will turn to one resource more than another, depending on the type of information they need and their practice area, and it’s helpful to be familiar with what is available before starting a search. Free resources usually are a good place to begin one’s research, and supplementing this research with fee-based resources likely produces the best results.

Reproduced by permission. ©2011 Colorado Bar Association, 40 The Colorado Lawyer 103 (August 2011). All rights reserved.

Stacey L. Bowers is the Outreach and Instructional Services Coordinator for the Westminster Law Library at the University of Denver Sturm College of Law. She can be reached at (303) 871-6079 or sbowers@law.du.edu.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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

New Across-the-Board Procedure Rules for Calculating Trial and Appellate Deadlines Proposed by the Colorado Supreme Court

July 27, 2011 by Leave a Comment

The Colorado Supreme Court is requesting written public comments by any interested person on revisions to proposed new rules for calculating trial and appellate deadlines. Changes are being made to virtually every rule of procedure (civil, appellate, uniform water, probate, and criminal) – a daunting task undertaken by the Supreme Court to help simplify how one determines when pre- and post-trial actions must be taken. Most of the new rules will take effect at the start of 2012, with a few others kicking in July 2012  to allow for legislative review.

Public review and comment is seen as vital to these changes especially, as they are comprehensive; with such a vast number of rules to review, it is possible mistakes or inconsistencies escaped the notice of the Supreme Court’s rules committees. The Court asks that lawyers who appear in courts—civil, criminal, appellate, or other—review the applicable proposals and submit written comments to the Supreme Court by Friday, September 30, 2011 at 5:00 pm.

According to an advance article from The Colorado Lawyer, the changes again come as a response to revisions in the Federal Rules of Civil Procedure. The amended Colorado rules will adopt the federal rules’ multiples of 7 – or, multiples of a week. This change will virtually eliminate problems that arise when a deadline falls on a weekend; a response that is due in 21 days will always fall on the same weekday.

The revised Colorado rules, however, reject the federal standard of allowing an extra 3 days for mailing and e-service. The Colorado rules will adopt a 7-day standard for that as well.

As a result of these changes, most court deadlines were rounded up to closest 7-day period, with 10 days becoming 14 and 15 rounding up to 21. However, sometimes longer periods were shortened slightly when time frames were deemed important; 30 days before trial could now become 28 days before trial.

All trial and appellate lawyers are urged to review the new proposed rules to determine whether these new deadlines create unintended consequences that should be fixed before final action on the rules is taken.

An original plus eight copies of written comments concerning the proposed new rules should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, at 101 W. Colfax Avenue, Suite 800, Denver, Colorado 80202, no later than Friday, September 30, 2011 at 5:00 pm.

Click here to review The Colorado Lawyer article outlining the proposed changes to the rules. Click here to assist the Colorado Supreme Court and review the amended rules themselves.

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Profile of the New CBA President, David L. Masters: Teacher, Tech Guru, and Outdoor Adventurer

July 7, 2011 by Leave a Comment

David Masters and wife Mary Jane at the 2010 CBA Presidents' Dinner

It was a simple entrepreneurial endeavor—starting a promotion company that would feature national acts performing concerts on National Forest Service land—that would change David L. Masters’s life in two profound ways. First, it would lead him to meet Mary Jane Hadeed, whom he later would marry. Second, investigating the company’s startup would provide an introduction to the legal profession, which would ultimately inspire him to become a lawyer.

Mary Jane was planning, building, and patrolling cross-country ski trails for the U.S. Forest Service when she heard about Masters and Will Lewis applying for a special use permit to host concerts. She was intrigued by the idea and had to meet them. Just two years later, she and Masters would wed in Leadville.

Forming the promotion company also led Masters to visit the office of a Western Slope attorney. As he looked around the office, the Army veteran turned Leadville auto parts shop manager took in the Spartan items that made up what he thought was all that was needed to run a law office—a typewriter and a set of books.

“I thought, ‘Wow, that’s all you need,’” Masters said. “That was a big motivation.”

That attorney was Kenneth M. Plotz, who would go on to serve as a judge in Colorado’s Eleventh Judicial District Court.

“Kenny was an inspiration for me to go to law school,” Masters said. “Part of my idea was that I could go to any small town and just be a general practitioner. I just wanted to help people do real estate deals or do their wills—whatever lawyers in small towns do.”

The promotion company was something that Masters and Lewis started for fun. They ultimately hosted several concerts on private land until the company was dissolved in 1978. Meanwhile, Masters continued to manage an auto parts store.

A few years later, Masters discussed with Mary Jane the idea about moving to Montana to go to law school. She was on board, and so was Plotz, who served as one of Masters’s references for his admission to law school and again for the Colorado Bar when the Masters family of three—David, Mary Jane, and daughter Allison—returned to Colorado in 1986.

A Love for Teaching

Masters has always had the uncanny ability to take a lot of complex information, digest it quickly, and explain it to others. It is curiosity mixed with the great ability to distill the overwhelming into the tangible, whether it be interpreting a statute, presenting a continuing legal education program, or explaining the basics of rock climbing.

Family Tree: David and Mary Jane, with daughters Allison (left) and Laura on Vancouver Island, British Columbia, Canada

“Whatever he is passionate about—whether it’s music, photography, climbing, or computers—he always wants to share it with others,” said Kathryn Sellars, an associate (and soon to be partner) with The Masters Law Firm in Montrose. “He wants others to be excited, too.”

That affinity of sharing knowledge with ease has made teaching and mentoring seamless additions to Masters’s law practice over the years. This is evident at his law office. Going from office space to conference room, a visitor immediately will be dazzled by the photographs he took while he was in Africa in 2010, for example, and others from his visits to Utah. They are clearly indicative of his talent for photography and his love of the outdoors. What may not be immediately noticed are the white boards in the office, which Masters uses to visually plot out tough issues in a case.

“He really trains the attorneys in his office to strategize and think big picture, and he really mentors throughout the process,” Sellars said.

Masters’s enjoyment of and inclination for teaching extends beyond the office setting. Daughter Allison, now 27, said she learned a great deal about writing and editing from her father while she was in high school. Today, she teaches English composition at Front Range Community College in Fort Collins. Second daughter Laura also is interested in teaching and hopes to teach English as a second language. Masters has formally taught classes with the National Institute for Trial Advocacy since 2001 and over the years has taught as an adjunct professor at Mesa State College in Montrose.

An Epiphany About Information Sharing

Hanging on a corkboard in his office is a photograph of petroglyphs that Masters took in the Sego Canyon in Utah. What resonates with him is the idea that when those were created approximately 8,000 years ago, painting on a rock wall was the manner of sharing information.

When talking about what he’s read recently, he mentions the book My Reading Life by Patrick Conroy. It discusses how reading has impacted the author’s life, but what Masters took away from it was the idea that for humans, one of the most important requests we make is, “Tell me a story.” He said: “There’s this whole continuum of how we as human beings have recorded and shared information, and it’s that ability to deal with information that is really part of the huge advances of the human race.” With these thoughts about how we share and archive information swirling in his head, Masters went down a path that would change the way he practices law.

A Hobby With a Professional Edge

When Masters was a partner at the Montrose law firm of Mathis & Masters from 1986 to 1999, the secretaries were the only ones in the office who knew how to turn on and work on the computers. “You look back fifteen years and it just seems so primitive,” he said, laughing.

Still, he saw how computers could be a tool in the legal practice, and he resolved to learn more about them. “Instead of having model trains or building ships in bottles as a hobby, computers became my hobby,” Masters said. “It was the perfect fit with my profession then and it still is today.” As he explains it, “In the late ’90s, there was this dawning realization that computers—instead of just being number crunchers—were going to be used to manage information, and we [lawyers] were the information workers. So, why wouldn’t we use these information managing tools to manage and use the info that we deal with every day?” It was this idea that computers were incredibly powerful tools for lawyers that spring-boarded him into speaking about technology and law practice locally and at American Bar Association (ABA) events.

In 2000, Masters decided he wanted to dissolve his professional partnership and go solo. Part of the reason for making this move was that he wanted to further pursue the use of technology in his law practice. He and his former partner Steve Mathis have remained friends through the transition. In fact, Mathis, who is a pilot, will be flying Masters to some of his CBA President’s visits on the Eastern Plains.

Going Paperless

By 2001, Masters had achieved one technology-related goal: his office was paperless. Today, there is only one two-drawer file in the Masters Law Office. It largely houses empty manila folders. There are some books, too, but the law firm’s research is largely done through online legal research tools. Masters likewise keeps an up-to-date CD-ROM archive, for those times he’s in a spot without Internet access. Occasionally, Masters will be at a conference and overhear someone talking about how they’ve made their office paperless. He’ll smile, knowing that the model is the same as his—and one he has regularly spoken about.

As time went on, going paperless became a reality with e-filing, too. He recalls working on a federal case with Christina Habas in 2002, before she was appointed to the Denver District Court bench. They kept all of their documents electronically.

“Throughout that case, he had scanned in essentially every document and made them searchable,” said Judge Habas. “It was just a complete change in how I practiced law.”

Adobe PDF and E-Filing

It became clear to Masters that Adobe PDF would be the standard for e-filing and keeping legal documents. It was an exciting realization, but also one that prompted him to think about the less-tech-savvy or even the tech-averse lawyers and how they would deal with this format. He decided that someone needed to write a book on how to work with PDF, and it might as well be him. “I got up and penciled out the table of contents and took it from there,” he said. In 2004, the ABA published The Lawyer’s Guide to Adobe Acrobat, which is now in its third edition.

Plans as CBA President

Masters has two passions within the law—technology and mentoring—that he hopes to make cornerstones of his year as CBA President. Encouraging the use of technology in the law practice will come as little surprise to those who know him. “That’s just me,” he said.

Mentoring is equally close to his heart. “I feel a great need to teach or mentor young lawyers,” Masters said. He hopes to further the CBA’s efforts to start a mentoring program. He would like to see the program gain sufficient momentum to continue beyond his term as CBA President.

Bringing Balance and a Unique Perspective to the Table

Longtime friend and Telluride Town Manager Greg Clifton said he is proud to see Masters take on this role as CBA President. “David is a pretty balanced person; I think he has very good perspective on things,” Clifton said. “He’s a great attorney. He’s a good listener. He’s a really good problem solver.”

Judge Habas also believes that Masters will bring a unique perspective to the presidency. His experience as a solo practitioner and as a Western Slope resident who has traveled far and wide throughout the state, the country, and the world—coupled with his laid-back personality and his ability to balance his professional responsibilities and his personal life—will bring something positive to his role as CBA President. “I think he’s going to bring a real eclectic background and real eclectic interests,” Judge Habas said.

An Outdoorsman for All Seasons

Late in the afternoon on a blustery spring day, Masters and Mary Jane are in their element taking visitors on a tour of “the park”—better known outside Montrose as the Black Canyon of the Gunnison National Park. Masters peers out into the canyon from one of the viewing points, which looks across the narrow, deep recess at a sheer wall of taupe, mixed with streams of pink. Mary Jane, today a park ranger at the Black Canyon, explains that the pink streams in the rock are pegmatite, some of the oldest rock in the world. It’s really lava that crystallized when it squeezed itself between the cracks of rock sometime during the Precambrian Era, 250 to 540 million years ago.

Throughout the tour of the park, Masters points out the routes (they’re routes, not trails, because the entire area is considered “backcountry”) he and Mary Jane take when they want to go to the base of the canyon. This is no easy feat, considering the canyon claims the state’s tallest vertical wall at 2,250 feet. Mary Jane spots two climbers two-thirds of the way up the face. Their bright T-shirts and helmets mark pinpoints in the vastness of the rock. Masters explains that expert climbers flock to this area to make the climb, and that it usually takes two days to reach the top. Masters is a climber, as well, though he admits this vertical wall is not one he has any plans to scale.

Masters and Mary Jane have always enjoyed the outdoors. “We’ve always been hikers, bikers, runners, climbers, outdoors people—enjoying people-powered sports—and we always will be,” Masters said. Currently, he’s been enjoying trail-running and climbing.

David Masters sits in front of teh snake petroglyph in Moab, Utah. Masters is an avid outdoorsman and spends his free time trail running and climbing.

The adventurous parents have instilled their love of the outdoors in their daughters. Allison said she enjoys hiking and camping, but admits her parents can be hard to keep up with. “As a teenager, I remember being bribed to the top of my first (and only) fourteener with the promise of a new CD,” she said recently.

Laura said her parents began taking her on hikes even before she could walk. The 22-year-old still likes to go hiking with her parents, but she especially loves climbing with her dad. Masters first took Laura rock climbing when she was about 8 years old. “We had a really fun day,” Laura said. “I was so excited to learn something so new and fun, and he was really enjoying being able to pass on his love of climbing to me.”

Dennis Devor, a Montrose-based sole practitioner and past president of the Seventh Judicial District Bar Association, offered his description of Masters: “David is kind of a 23rd century guy and an 18th century guy all in one. He really enjoys the out-of-doors just as he clearly is looking to challenge himself with tomorrow’s technology.”

In February 2010, Masters and Mary Jane did some high-altitude climbing, reaching the summit of Mount Kilimanjaro after an eight-day hike. Their photo at the summit shows them bundled in jackets and gloves. “It was extremely cool,” Masters said of the view from the top.

David and Mary Jane on the summit of Mount Kilimanjaro in Africa, February 2010

To prepare for the climb, they did a lot of snowshoeing and hiking, and spent a few nights in their camper at the top of Red Mountain Pass to acclimate themselves to the cold and the altitude. Most winter nights, theirs was the only camper up there. Although Masters doesn’t think he’ll pursue the Seven Summits—climbing the seven highest peaks on all seven continents—he’s not ruling it out. He and Mary Jane are seriously considering climbing Aconcagua, the 22,841-foot mountain that lies on the Chile−Argentina border, following his term as CBA President.

Looking Toward the Future

There are several literal mountains left for Masters to climb. In the meantime, though, he would like to propose a few metaphorical ones for the legal community. When asked what he would change about the legal profession, he paused for several moments.

“It’s a very hard question,” he replied. After giving it some thought, he said it would be to increase the level of professionalism. “I would like to see lawyers treat each other with more respect and not engage in the maneuvering and game playing that tends to go on.”

Others find the keys to professionalism exemplified in Masters. “I’ve never seen him drop that air of complete professionalism,” Judge Habas said. “I hope he can change the conversation a bit—[professionalism] is about more than just being polite.”

To Kathryn Sellars, Masters exemplifies that integrity in his daily actions. “He strives to have integrity with every decision and every action. To me, that is one of the true measures of integrity—the small things without the expectation of credit and when no one is watching.”

Sellars also hopes David’s enthusiasm—for the law and for life—is contagious with members. “David is passionate about service and participation within the bar association, and perhaps it is this characteristic that will become most prominent to others throughout his term as President,” she said. “I believe the story will be that his passion has encouraged others to give more, participate more, and expect more from themselves.”

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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CBA-CLE Author to Do Reading, Signing on June 10

June 9, 2011 by Leave a Comment

A religious leader’s oratory is overly strident, and the greater community resents his inflammatory message. His place of worship is bombed as a warning.

A well-respected Colorado governor sees his divorce played out in the courts, with many ugly and embarrassing revelations. The public’s hunger for the lurid details appears insatiable, and the press is happy to oblige.

Despite several warnings, a distracted driver is injured in an accident with city-owned street equipment in Denver and sues the city. She wins at trial, and the appellate court upholds the jury’s verdict.

Ripped from the headlines? Well, yes — but not today’s headlines. The church steeple exploded in Breckenridge in 1891. Governor Gilpin’s divorce woes were all the rage in 1897. And the distracted horse-and-buggy driver was engaged in conversation with her passenger when the city’s steamroller frightened her horses and overturned the buggy in 1892.

The parallels with today’s news are obvious in these and the many other accounts of Colorado appellate cases that you will find in Steam, Steel & Statutes: True Tales from Colorado Legal History, published by Colorado Bar Association CLE. This delightful book is a collection of “Historical Perspectives” columns that appeared in The Colorado Lawyer from 2002 through 2010.

Steam, Steel & Statutes is currently a finalist for the 2011 Colorado Book Awards (History/Biography category). The winners will be announced in late June, but you can hear author Frank Gibbard read from the book on Friday, June 10, during the “Finalist Readings” sponsored by the Book Awards, beginning at 4:30 p.m. at Baur’s Ristorante, 1512 Curtis Street in downtown Denver. Everyone is welcome, and Frank will be happy to autograph books at the event.

Steam, Steel & Statutes is available for purchase in the CBA-CLE bookstore.

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