Faculty of Federal Advocates Newsletter

Table of Contents:

• President's Message by Saskia A. Jordan
• Electronic Case Filing (ECF) by Chris Vagner
• Bankruptcy Court Joins Bankruptcy Appellate Panel
• CLE Credit Available Pro Bono Work
• Debriefing from the 2004 Bench-Bar Roundtable by Michael E. Hegarty
• Thank You from the Counsel/Co-Counsel Program
• Op-Ed by Patrick Murphy

President's Message
by Saskia A. Jordan

What is the mission of the Faculty of Federal Advocates?

This was one of the questions discussed at the Board retreat in February which included new Board members Peter Bornstein, Marci Gilligan, Reid Neureiter, Jeff Pagliuca, Amy Robertson and J. Smiley, as well as several past presidents who were involved in the formation of the FFA.

We discussed new and old programs and what we can do to continue to serve the needs of our membership. Although we don’t agree on everything (including the name of our organization), the Board is in agreement that we would like to hear from our members. So I encourage you to express your views by calling a Board member or sending a letter to our quarterly newsletter.

The Board is committed to continuing our CLE programs that have been successful in the past. These programs reflect our goal of promoting interaction with the judges in this district. Interestingly, we are a unique organization in this country. I have received inquiries from lawyers who practice in other districts about our organization and how we obtain the support we do from the judges in our district.

We are committed to continuing our brown bag lunch programs with the cooperation of the judiciary. As those of you who attended the March 3rd brown bag featuring District Court Judge Figa and Tenth Circuit Judge Tymkovich know, these events are an excellent opportunity to hear from and pose questions directly to members of the judiciary. We plan to expand our brown bags to cover practice tips and several will be specifically directed towards new admittees and lawyers with limited experience in federal court.

I urge you all to consider participation in the Counsel/Co-Counsel program which is managed by the FFA with the assistance of volunteer attorney Rick Foster at Cockrell Quinn & Creighton. This is a wonderful opportunity for attorneys new to federal court practice to try a case in federal court and provides an important service to pro se litigants and the Court.

J. Smiley has joined our Board representing the Bankruptcy bar and we look forward to continuing and expanding our relationship with the Bankruptcy judges and the lawyers who practice in Bankruptcy Court.

We have a special committee on our Board aimed at reaching out to new admittees, and in June we will repeat our federal court new lawyer orientation program which was highly rated last year by both “new” and “old” lawyers.

In the fall we will host the Third Annual Bench Bar Roundtable with the federal judges and magistrate judges. The Bankruptcy Court and bar will continue their own tradition and roundtable. The judges’ enthusiasm and participation has made this a unique event, and we will offer it again to our members on a first come first serve basis.

Our website is up and running at www:facultyfederaladvocates.org and we have plans to make it a more useful tool for FFA members. We will post information concerning the court rules of the judges in our district, and we are working towards putting in place a feature which will alert you to changes in the rules.

Finally, our Board is enthusiastic and has ideas for new programs which we will announce throughout the year. We welcome your ideas and suggestions and hope to hear from you soon.

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Electronic Case Filing (ECF)
by Chris Vagner

The United States District Court for the District of Colorado is excited to introduce Electronic Case Filing (ECF); the new automated electronic docketing system for Colorado. ECF provides a new, easy-to-use electronic case filing feature that makes life much easier for court users allowing the filing and viewing of court documents over the Internet. Attorneys will be able to take advantage of electronic filing and notice beginning June 20, 2005.

What ECF Offers

ECF allows attorneys to file and view documents from anywhere they have access to the Internet, 24 hours a day. Documents are docketed as part of the filing process. ECF also provides the following benefits:

• 24-hour access to filed documents over the Internet;
• Automatic e-mail notice of case activity;
• Ability to download and print documents directly from the court system;
• Concurrent access to case files by multiple parties;
• Secure storage of documents (so files are not misplaced); and
• Reduction in overhead costs.

How it Works

The system accepts documents in Portable Document Format (PDF). PDF retains the way a document looks, so the pages, fonts and other formatting are preserved. Filing a document with the court’s ECF system is easy.

• Create the document using word processing software.
• Save the document in PDF format.
• Log onto the court’s ECF system, using a court-issued login and password.
• Follow the set of simple prompts to provide information about the case, party and document to be filed.
• Attach the PDF document and submit it to the court for filing.
• Save or print the ECF electronic receipt e-mailed from the court confirming that the document was filed.

Rules

The ECF system will be governed by the Local Rules, the ECF Procedures for the District of Colorado and the ECF User Manual. All users should be familiar with these documents and the requirements set forth within them. The court has published the rules and manuals governing ECF on it’s website at www.cod.uscourts.gov (click on Electronic Case Filing).

Live Date

Effective June 20, 2005, the U.S. District Court for the District of Colorado will require that all attorneys filing documents in civil cases do so by using the ECF system. Electronic filing in criminal cases begins in the fall of 2005. An attorney who desires an exception to the requirement should refer to the ECF Procedures for more information.

Registration

Attorneys must register on the court’s website at www.cod.uscourts.gov (click on Electronic Case Filing) by completing an ECF Account Registration. Upon completion of the form and addition to the court’s database, users will be issued and notified of their login for the system. Registration allows the user to take advantage of the benefits of electronic filing and notice.

Training

Attorneys and their staff are encouraged to complete either the classroom or online training options prior to filing documents with the District of Colorado. Completion of any ECF training or experience in a different federal district or bankruptcy court may be substituted for the training offered as long as the user has read and understands the ECF Procedures for the District of Colorado and the ECF User Manual. Training on the State of Colorado’s electronic filing system will not prepare you for the federal court ECF system.

Classroom training for users will be provided to all interested attorneys and law firm staff. The court will provide classroom instruction and online training options. Due to class size limitation for classroom instruction, we request that either an attorney or a staff member attend, but not both.
Users should visit the court’s website at www.cod.uscourts.gov (click on Electronic Case Filing) to register for classroom instruction and/or complete the online training.

Please feel free to contact the court’s ECF Help Desk toll free at 1-866-365-6381 or 303-335-2050. E-mail the court at cod_cmecf@cod.uscourts.gov.

* Chris Vagner has worked with the federal bankruptcy and district courts since 1991. Prior to being the ECF Project Manager for the District of Colorado, Chris filled a similar position with the Northern District of Texas. He has worked on electronic filing issues in the federal courts since 1999 and has helped mentor half a dozen districts on electronic filing implementation. Chris attended Baylor University in Waco, Texas.

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Bankruptcy Court Joins Bankruptcy Appellate Panel

The U.S. Bankruptcy Court for the District of Colorado joined the Bankruptcy Appellate Panel beginning January 3, 2005. The District Court for the District of Colorado approved the move which will result in all of the Tenth Circuit's Bankruptcy Courts now participating in the BAP. Litigants in bankruptcy court can elect to have their appeals heard by a three judge panel of bankruptcy judges (from outside of the Colorado court) as an alternative to an appeal to the District Court.

The Bankruptcy Court and the BAP are making arrangements for the change in practice, and have provided information and training sessions for practitioners to inform practitioners about the option and the practice in the BAP. For further information about the BAP, visit the Court’s website at www.bap10.uscourts.gov, or, if necessary, call the Clerk’s Office at the Bankruptcy Court (303-844-5997) or the offices of the Bankruptcy Appellate Panel (303-335-2900).

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CLE Credit Available Pro Bono Work

Did you know that you can apply for Continuing Legal Education credits for your pro bono services through the FFA Counsel/Co-Counsel Program? Under the Colorado Rules of Civil Procedure, you can earn up to 9 CLE credits during each three-year compliance period for pro bono work assigned by a court or through a non-profit organization whose purpose includes providing. Cases assigned by a court or a non-profit organization whose purpose includes providing legal services to indigent or near-indigent parties in civil legal matters qualify for CLE credits. For more information, see Colo. Rule Civ. Proc. 260.8.

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Debriefing from the 2004 Bench-Bar Roundtable:
Tips for the Federal Court Practitioner
by Michael E. Hegarty

On November 6, 2004, the FFA sponsored its Second Annual Federal Bench-Bar Roundtable. As with the 2003 version, the event was well-received by all participants. The program offered four CLE credits and consisted of each practitioner participating in four rounds of 45-minute discussions, with each table having one judge, one attorney moderator, and approximately six to eight attorneys. Each attorney had the opportunity to participate in four of the ten different discussions.

The discussion topics were (1) The Impact of Various Courts’ Procedures on Preparing Cases for Trial and Trying Cases; (2) Summary Judgment Motions: How Effective Are They?; (3) Missed Opportunities: Are There Ways to Make the Rule 26(f) Meeting a Dialogue that Benefits the Parties?; (4) Preparing Scheduling Orders that Reflect Reality; (5) How to Facilitate the Settlement Process; (6) The Final Pretrial Order: Who Is It Really For?; (7) Jury Instructions: What are Attorneys Doing Right and Wrong?; (8) Trial is More Than Protecting Your Record; (9) Are We Properly Training New Attorneys?; and (10) From Indictment to Sentencing: Criminal Law Issues in the Wake of Blakely v. Washington, 124 S.Ct. 2531 (2004).

Participating judicial officers included Chief Judge Babcock, Senior Judge Weinshienk, District Judges Nottingham, Daniel, Miller, Krieger, Blackburn, and Figa, and Magistrate Judges Coan, Watanabe, Boland, Shaffer, Rice, and West.

It is clear that this will be an annual event into the foreseeable future. Please watch for the announcement for the 2005 Roundtable, because participation is limited and all available spots fill up quickly.

As a teaser, here are some sample comments and themes from the discussions. Please note that these comments may reflect the sentiments of a few judges (or even one) and are not intended to represent the opinion of the Court as a whole:

How to Facilitate the Settlement Process

• From a plaintiff’s perspective, early settlement is better for the client, especially before expert discovery begins, because the plaintiff might mortgage the house to pay for experts, and after that, they are usually willing to roll the dice rather than take a lowball settlement.
• There is an average of 26 months from case filing to trial, so an early settlement could avoid a prolonged, difficult endeavor for both sides.
• Generally, judges prefer to try cases, so settlement actually goes against their predilection. Despite that, the magistrate judges are prepared to, and do, invest significant amounts of time on any given case to facilitate a resolution short of trial.
• Here’s a sample “spin” that a magistrate judge may give to parties:

  To Plaintiff: It’s like buying a horse, taking care of it, feeding it for two years, draining your money, then entering into the Kentucky Derby.
  To Defendant: You can pay a lawyer for two years and get no value, or you can invest up front in a settlement and know what you are getting.

• Regarding confidential settlement memos: They seem to have gone from three pages to 50 pages in order to convince the magistrate judge of the correctness of the party’s position. Some magistrate judges do like memos that go into great detail, including submission of the entire transcripts of depositions, so that the judge can make a judgment on the strength of the case. Some judges do not want mere excerpts of transcripts, because a party will tend to submit only those portions that support their argument. Also, by reading the entire transcript, the judges can determine how the lawyers are treating one another, which is an important factor for them assisting in settlement.
• One magistrate judge stressed honesty in settlement letters and in preparation for the conference. The attorneys must speak frankly with their client prior to the conference, preparing them on the strengths and weaknesses of the case. Some judges also ask that a settlement demand be made before the settlement conference.
• Some judges insist that the parties disclose both strengths and weaknesses in their respective cases. One judge’s settlement conferences have been more effective if the judge is able to advise parties on his/her informed opinion of their case.
• Some judges have assessed costs against a party who does not participate in a settlement conference in good faith.
• The gist of many of the comments is to find out exactly what your magistrate judge expects prior to and during a given settlement conference, and tailor your submission accordingly.

Summary Judgment Motions: How Effective Are They?

• Most judges practiced law before coming on the bench, and they filed summary judgment motions themselves in private practice. It can be an excellent way to weed out claims, even if not the entire case. Many judges are willing to do this, but the party submitting the motion needs to be clear what they are seeking, because the Court will not ferret it out.
• The judges intend, and are almost always successful, in resolving summary judgment six months before trial, at the latest several months before trial.
• Most of the judges believe in page limitations, even if not expressly stated in their particular procedures manual.
• Most judges do not hold oral argument on summary judgment motions, except that scheduling the matter for oral argument does help “tee the issue up.” Indeed, asking for oral argument after a motion is filed and pending may prompt a quicker decision with some judges.
• A good brief really assists the court in focusing on the legal issues, much more so than oral argument oral argument.
• If the parties believe a decision on summary judgment will assist in settlement, the parties should file a statement to that effect, and the Court will do what it can to assist the parties (no guarantees). Also, the parties can inform the magistrate judge, who can inform the district judge.
• For some judges, all pro se motions for summary judgment go to the magistrate judge for recommendation; further, if the parties request that the motion go to the magistrate judge for a recommendation, some judges will honor that request.
• One district judge recommended an early motion for summary judgment with stipulated facts and a stipulated request for expedited consideration, if the parties believe that a particular legal issue is an impediment resolving to the case.
• One judge expressed a preference that summary judgment motions be “easy and simple.” This judge did not want the entire transcript of sworn testimony, just affidavits and excerpts. The judges are not going to “hunt for an acorn in the trash”; the litigant has to point the judge to the relevant material.
• Several judges noted that summary judgment is not for narrowing “issues,” but for deciding whether you have to go to trial or not.
• A motion for partial summary judgment should be one that changes the fundamental nature of the trial. Otherwise, some judges believe that they might as well try the case and make legal rulings at the end of the plaintiff’s case.
• Certain summary judgment motions (e.g., qualified immunity) should be decided early. The same is true for early jurisdictional motions.

The Final Pretrial Order: Who Is It Really For?

• Remember that the answer merges into the final PTO
• The court wants lawyers to work harder at throwing witnesses and exhibits off the PTO. Further, they should focus on “will call” witnesses and vastly reduce “ may calls.”
• Some judges prefer to conduct their own pretrial conferences in order to winnow out claims, and to get a good picture of the structure of the trial. This is the time when a defendant might object to the injection of “collateral” claims.
• Motions to amend the PTO must be filed sooner than the final pretrial conference.
• After a summary judgment order which only partially eliminates a case, if the final PTO has already been issued, the parties should get the summary judgment order to the magistrate judge so that the final PTO can be amended. Parties should ask for a supplemental pretrial conference.
• Most important parts of the PTO:
• Claims and defenses
• Identify any pending motions
• Will call witnesses
• Many judges discourage motions in limine on the basis of Rule 403 - the judge must hear the evidence at trial in context.
• Many judges prefer trial briefs that will “red flag” potential sticky issues.

Are We Properly Training New Attorneys?

• So few civil cases go to trial, the bar is currently suffering for lack of experience.
• Newer attorneys need to focus on separating emotions from the case and to be more objective.
• The court does not mind when an attorney honestly says, “I don’t know the answer to that question,” or “I am not prepared to address that.”

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Thank You from the Counsel/Co-Counsel Program

The Faculty of Federal Advocates Counsel/Co-Counsel Program wishes to thank Paula Ray of Paula M. Ray, Heather Salg of Harris Karstaedt Jamison & Powers, John Richilano of Richilano & Ridley, David Tenner of Bond & Morris, Jay Baker of Shughart Thomson and Kilroy, Marci Gilligan of Richilano & Ridley, Bill Berger of Stettner, Miller & Cohn, Frederick Klann of White and Steele, Stephen Gurr of Kamlet Shepherd & Reichert, David Powell of Brownstein Hyatt Farber, George Price Attorney at Law, Saskia Jordan of Haddon Morgan Mueller Jordan Mackey & Foreman, Kevin McGreevy of Haddon Morgan Mueller Jordan Mackey & Foreman, Peter Weinberg of Gibson Dunn & Crutcher, Bob Marshall of Gibson Dunn and Crutcher, Danielle Urban of Brownstein Hyatt Farber, Jennifer Sullivan of Faegre & Benson, Christy Anderson of Faegre & Benson, Reid Neureiter of Jacobs Chase Frick Kleinkopf and Kelley, and James Eklund of Jacobs Chase Frick Kleinkopf and Kelley, for accepting cases this year as part of the program. The program provides needed legal representation to pro se litigants in cases referred by the U.S. District Court. Through the program, experienced mentor attorneys are paired with attorneys with less experience in federal court. This provides a unique learning opportunity for a newer attorney and allows a mentor lawyer to take a case with the assistance of co-counsel.

If you are interested in handling a case, please contact FFA Administrator Patricia Murphy at 303-455-0927 or Nancy Rutledge at the U.S. District Court, 303-335-2139.

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Op-Ed

Is it just me or does anyone else think that the name of our organization is both pretentious and somewhat pontifical? Why not call ourselves the Federal Advocates and drop the Faculty? It just seems silly to me to pretend that we are a "Faculty".

The name is a barrier for new attorneys to join. Imagine receiving information after being sworn in asking you to join the Faculty of Federal Advocates. Hell, you haven't even been to court yet. Doesn't it seem a bit intimidating?

I suggested to the old guard that we change the name and they retorted " just forget about it" the name is etched in stone.

My primary goal as a board member of the Federal Advocates (see how easy it is to change the name) is to encourage new attorneys to join and to change the perception that the organization is the ultimate "insider's club." We had a successful CLE last summer for the new attorneys as an orientation to federal practice. We had a terrific group of judges who spoke including Chief Judge Babcock, Senior Judge Matsch, Chief Judge Brooks of the Bankruptcy Court and Magistrate Judge Coan. It was well attended and we plan to do another one this June. Better yet, it is free.

We could commission the Dave Matthews Band to do a theme song for the organization to recruit new attorneys. Okay, I am taking it a step too far. Something just doesn't feel right about simply sending in a check for $40 and then be a Faculty member. Isn't this akin to sending a few bucks in to one of those companies that will send you a certificate as an ordained minister?

-Patrick Murphy
Board Member

IF YOU HAVE ANY COMMENTS OR AN ARTICLE YOU WOULD LIKE CONSIDERED FOR
PUBLICATION PLEASE SUBMIT TO:

FACULTY OF FEDERAL ADVOCATES
PO BOX 12025
DENVER, CO 80212-0025
OR EMAIL: pmurphyffa@aol.com

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