March 25, 2019

Archives for July 25, 2012

Civil Access Pilot Project: Making Colorado Courts More Efficient?

Earlier this year, we, as attorneys, were blessed by the Colorado Supreme Court’s decision to completely overhaul the procedure for practicing law in Colorado.  Dubbed the Colorado Civil Access Pilot Project, or CAPP for short, its new procedures apply in (1) “Business Actions” (2) filed between Jan. 1, 2012, and Dec. 31, 2013 (3) in Adams, Arapahoe, Denver, Gilpin, or Jefferson counties.

For what constitutes a “Business Action”, see page 8 of Chief Justice Directive 11-02, available here.  Notable exclusions from CAPP include: actions solely for the payment of rent on real property, CRCP 120 proceedings, actions brought by financial institutions solely for the collection of debt, employment actions other than disputes concerning the breach of a non-compete or theft of trade secrets, construction defect claims, negligence actions for physical injuries, and actions involving a statute or rule that contains distinct timeframes for the proceedings.

I have had the opportunity to represent parties in two CAPP cases this year — one as a plaintiff and one as a defendant. Our CAPP plaintiff case was filed in late March.  I don’t have much to report from this case because it settled shortly thereafter, but I did take notice of how quickly we were required to make our initial disclosures.  Under CAPP, the plaintiff is required to file initial disclosures no later than 21 days after service of the complaint.  This felt like a very quick turnaround.  We definitely had to do a little more work on the front end to meet the deadline.  These initial disclosures consist of:

 [A] statement listing all persons with information related to the claims and a brief description of the information each such individual is believed to possess, whether the information is supportive or harmful.  The statement shall also include a certification that the party has available for inspection and copying all reasonably available documents and things related to the claims, along with a description by category and subject area of the documents and things being disclosed, whether they are supportive or harmful.

Again (it was not a typo two sentences ago), these disclosures must be filed with the court and served on the opposing party or parties.

A few things to note here: First, regarding the scope of the initial disclosure statement, the CAPP authors have emphasized that “all documents” means all documents, whether supportive or harmful.  Based on the wording of C.R.C.P. 26(a)(1), I think lawyers were already under an obligation to produce everything, but the CAPP authors seem to think that many attorneys don’t give over the juicy stuff unless asked.  Second, the scope of discovery changed from “relevant to” to “related to.”  Based on my reading, it appears that “related to” is a broader standard.  Third, this initial disclosure statement is somewhat narrow in that no counterclaims have yet been brought.  So the scope of discovery at that point is only documents “related to” the claims in the complaint.  However, if counterclaims are brought, the plaintiff has to file an additional disclosure statement (discussed more below).  Finally, I took note of how different it is to give documents to a defendant who has not yet filed an answer.

The CAPP case where our firm represents the defendant has been much juicier.  That case was filed in early March and remains ongoing.  I’ve observed a couple CAPP pitfalls in this case.  First, file your initial disclosure statement.  The CAPP deadlines are structured such that one deadline begins only after the previous deadline has been met.  Under the CAPP rules, the answer is not due until 21 days after the plaintiff files the disclosure statement.  Technically, if you don’t file your disclosure statement, the defendant doesn’t have to answer.  Second, the CAPP courts are issuing delay reduction orders shortly after the filing of the complaint.  One of the provisions of the DROs is for the plaintiff to set a case management conference within seven days after the last answer is filed.  Note, this deadline is not in the CAPP rules, so watch out for it.

At this point in the case, if I were to identify the biggest difference between CAPP and the Colorado Rules of Civil Procedure it would be that, if counterclaims are filed, the CAPP pleading/initial disclosure stage can take a long time.  As I said, this case was filed in early March, and the final disclosure statement is not due until mid-to-late June.  Time will tell whether the CAPP rules can justify this lengthy pre-discovery period by significantly reducing the length and burden of discovery.  If not, I don’t think the CAPP rules will make litigating any more efficient than under the CRCP.

Michael Ley is an associate at Brosseau Bartlett Seserman, LLC and concentrates his practice on insurance, commercial, and civil litigation.. He contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on July 23, 2012.

Finalists Selected to Fill Judgeship on Montrose County Court Bench

The Seventh Judicial District Nominating Commission has nominated three candidates for a Montrose County court judgeship created by the resignation of the Honorable Jerry Montgomery on July 3, 2012.

The nominees for the bench are Bennet Morris, Seth Ryan, and Jason Wilson. All nominees are from Montrose and were selected by the commission on July 24.

Under the Colorado Constitution, Governor Hickenlooper has until August 9 to appoint one of the nominees as County Court Judge for Montrose County.

Tenth Circuit: Conviction for Criminally Transporting Alien Affirmed; Need Only Show Alien Was Illegally Present In US, Not Illegal Entry

The Tenth Circuit Court of Appeals published its opinion in United States v. Franco-Lopez on Monday, July 23, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner appeals his conviction on one count of transporting an illegal alien. The statute under which he was convicted “criminalizes the transportation of an alien who ‘has come to, entered, or remains in’ the country illegally.” Petitioner argues that the district court erred in denying his motion for acquittal because the government did not present evidence that the transported alien illegally ‘entered’ the United States. In support, Petitioner relies on the definition of ‘entry’ used in the context of civil immigration law or in illegal reentry cases.” The Court, however, concluded that “the government need only prove that the transported alien was present in the United States in violation of the law.”

Tenth Circuit: Unpublished Opinions, 7/23/12

On Monday, July 23, 2012, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Crawford v. Barnes

United States v. Davis

Mathis v. Jones

United States v. Ramirez-Fragozo

McDonald v. Astrue

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Senior Law Day: The Village Movement and Your Community

Denver Senior Law Day will be held Saturday, July 28 at the Denver Merchandise Mart. This annual educational seminar presents programs specifically designed for seniors in the Colorado community. This seminar will provide attendees with important and useful information on many issues facing our growing senior citizen population. If you are a senior, an adult child with an aging parent, or a caregiver, this is one day you cannot afford to miss. Every attendee will receive a free copy of the 2012 Senior Law Handbook. Mark your calendar today for this excellent and informative event. Click here for more information.

Neighbors Helping Neighbors

Ready for some refreshing news on the challenges of an aging America?  Look no further than the surging Village Movement. Across the United States, Villages are sprouting up like well-watered tufts of grass, defying an otherwise arid landscape. Within the past two years, this innovative, community-style approach to keeping older adults in their own homes has grown by 80%. According to Village to Village Network, a national advocacy group, 90 Villages are now open and operating, with another 125 in development.

A Village may grow to serve 100 to 400 members or more, typically age 55 and up. Members live in their own homes, which may be located anywhere within the defined membership service area. Most Villages are local nonprofit organizations (IRS 501(c)(3)) with a board of directors who live in the community. The Village Movement was pioneered by Boston’s Beacon Hill Village, founded in 2001.

Village membership offers convenient, one-call access to volunteer services or vendor referrals. Does the member need a ride to the doctor or to the beauty shop? A day out to go shopping with friends? How about a volunteer to fix a leaky faucet, or to climb a ladder and clean out roof gutters?  When a member needs a reliable contractor – for example, a painter, plumber, or lawn service – the Village can suggest vendors from a vetted list.

Social connection is a powerful advantage to Village membership.  Informal get-togethers and educational activities stimulate and strengthen friendships. “Neighbors helping neighbors” is much more than a tagline; nationally, about 60% of Village members serve as volunteers too.  Certainly, this high level of participation is influenced by the can-do will-do spirit of younger members, who are still in their 50s, 60s, or 70s.  However, it also reflects the passion of members in their 80s and 90s to stay active – teaching, mentoring, leading, or whatever they may choose to do.  Community is the heart and soul of a Village.

In brief, Villages can help older adults to deal successfully with three of biggest obstacles to living independently in their own homes.

  1. The Need for Transportation — Driving may eventually become a challenge, so it’s harder to get to the doctor, pharmacy, grocery store, etc.
  2. The Risk of Falling — Injuries due to falls make it necessary for some to leave their homes for assisted living or skilled nursing facilities.
  3. Social Isolation and Loneliness — People need to be around other people, to live in community and maintain a sense of purpose.

A recent study highlights the effectiveness of a Village in helping older adults to live safely at home.  According to One Call Club in Knoxville, Tennessee, 80% of Village members will avoid moving to an assisted living residence or nursing home for at least one year. With nursing home costs running around $200 per day, it doesn’t take a math whiz to see that $600 per year for household membership in a Village is a bargain. (For an individual Village membership, the national average is $460 per year.)

The success of Villages may be attributed to several factors: reduced risk of injury or accident, healthier eating, a brighter emotional outlook, and a renewed sense of purpose. For all these reasons and more, Villages are a promising, cost-effective option for older adults who want to stay in their own homes, in a community of neighbors helping neighbors.

Arnie Snyder is owner of Elder Life Advisors and co-founder of the first two Colorado Villages: Washington Park Cares (now, A Little Help), Denver, and Columbine Community Village, Littleton. He is a member of the National Advisory Committee for Village to Village Network, LLC.