Faculty of Federal Advocates
P.O. Box 12025
Denver CO 80212-0025
Administrator:
Patricia Murphy
pmurphyffa@aol.com
Copyright © 2004-2009
Faculty of Federal Advocates
Faculty of Federal Advocates Newsletter
July 2009 Volume 11, Number 1 Table of Contents:
Faculty Partnering With Our Courts Program The Faculty of Federal Advocates is proud to announce that it has become a partner of the Our Courts program in Colorado. Our Courts is a statewide civic program, developed by the Colorado Judicial Institute and the Colorado Bar Association in 2007, to increase public understanding and knowledge of the state and federal court systems in Colorado. Through the Our Courts program, speakers are trained to give presentations to adult audiences explaining how the courts work — such as how a case proceeds, which courts handle which kinds of cases, how cases are decided, and the processes by which judges are selected, evaluated, disciplined and retained. They are designed to be educational and civic in nature and do not take any position regarding any case, law, or proposed change to the court system. A central goal of Our Courts is to educate the public by providing these presentations to adult groups and organizations such as community leadership programs, libraries, business and economic development councils, community colleges, service organizations, undergraduate and graduate schools, and other community organizations. The program has developed three presentations — one explaining the federal court system and another explaining the state system and a third on Abraham Lincoln. More programs are in development – anatomies of a civil case, criminal case and bankruptcy case. Since fall of 2007, the Our Courts program has trained over two hundred speakers and made more than 160 presentations to well over five thousand people in various locations throughout Colorado. Our Courts was founded by United States District Judge Marcia Krieger, Colorado Court of Appeals Judge Russell Carparelli, and Colorado Judicial Institute Vice Chair Ellie Greenberg. The Colorado Bar Association has shown strong support for Our Courts by committing significant staff and financial resources to the project. The state and federal courts, too, have collaborated with Our Courts, and numerous judges — including (but not limited to) United States District Judges Wiley Daniel and Bob Blackburn, United States Magistrate Judges Boyd Boland and Kathleen Tafoya, United States Bankruptcy Judges Michael Romero and Beth Brown, Colorado State Supreme Court Justice Gregory Hobbs, and Colorado Court of Appeals Judges Steve Bernard, Rich Gabriel and Gale Miller — have contributed a great deal of time and energy in supporting this project. Our Courts was featured at the last 10th Circuit Bench and Bar Conference and is featured under the education tab on the 10th Circuit website. The program has also been recognized and praised both regionally and nationally, including by Retired United States Supreme Court Justice Sandra Day O’Connor and in the last issue of The Third Branch a national publication for the federal courts and Congress. Numerous entities have agreed to partner with Our Courts. Partner organizations work with Our Courts and other community groups to host, publicize and sponsor presentations and help identify speakers and audiences. Partner organizations include not only the Faculty of Federal Advocates but also numerous other organizations, such as the Colorado County Judges Association, the Colorado District Judges Association, the Institute for the Advancement of the American Legal System at the University of Denver, the University of Colorado Law School, the University of Denver Sturm College of Law, the Colorado Community College System, the League of Women Voters of Colorado, the University of Colorado at Denver School of Public Affairs, and the National Center for State Courts. The Faculty of Federal Advocates encourages its members to participate in this project to further public understanding of the judicial system. More information about the Our Courts program can be found at www.ourcourtscolorado.org. If you are interested in helping present Our Courts programs, or if you belong to (or know of) an organization you think might be interested in hosting an Our Courts presentation, please contact the Colorado Bar Association Director of Public Education, Carolyn Gravit, at (303) 860-1115 or cgravit@cobar.org. The Faculty of Federal Advocates hopes that some of its members will assist the Our Courts program in its laudable efforts to provide valuable civic education through this project. The Faculty of Federal Advocates Bankruptcy Pro Bono Program Since 2001, the Faculty of Federal Advocates Bankruptcy Pro Bono Program has provided representation to indigent debtors defending discharge and dischargeability claims in bankruptcy court. The program has been an enormous success, from the standpoint that debtors who are otherwise unable to afford counsel have received qualified representation. One of our objectives has been to team up inexperienced lawyers with more seasoned practitioners in order to provide supervised litigation experience. The program has thus been an excellent training opportunity for more inexperienced attorneys, who are assigned to mentors who can provide assistance throughout the case. In 2007, the pro bono program instituted a trial advocacy course for lawyers willing to accept assignments of two pro bono cases over a two year period. The course takes a hands-on approach, in which participants are given the opportunity to develop their trial skills in a moot court format. The program was provided in February 2009. For each session, the bankruptcy judges set aside their courtrooms for the trial advocacy program and presided over the moot court trials. In addition, instruction was provided by a select group of Denver's most well known civil litigators. John Chanin of Lindquist & Vennum participated as an instructor in this year's trial advocacy program. This program highlights perfectly the dual role of the Faculty of Federal Advocates -- promoting excellence in federal practice and service to the court. To practitioners, it offers a unique opportunity to engage in mock trial exercises and receive immediate feedback from a 'real' judge and an experienced trial lawyer. The Bankruptcy Pro Bono Program is always looking for additional attorneys to handle cases. For further information, call Brent Cohen, Rothgerber Johnson & Lyons LLP, (303) 628-9521 The
Honorable Philip A. Brimmer: Lessons from Re-Trials
On March 12, 2009, recently-appointed United States District Court Judge Philip A. Brimmer presented at a well-attended FFA brown bag seminar on “Lessons from Re-trials.” Judge Brimmer examined two different case studies, one criminal and one civil, in reaching his conclusion that certain strategic lessons can be gleaned from the opportunity to try a case twice. Judge Brimmer’s first example was a criminal case, U.S. v. Holy Land Foundation, from the United States District Court in Northern District of Texas. The Holy Land Foundation was the largest Islamic charity in the United States, with a stated purpose of providing humanitarian aid for Palestinian refugees. However, in 2001 the Treasury Department listed it as a organization that provided funding to terrorist organizations. The case was filed in 2004, with 42 counts against 6 defendants. The charges included conspiracy, providing material support to a terrorist organization, tax evasion and money laundering. In the first trial, in July 2007, the evidence took 7 weeks to present. After 19 days of deliberations, the jury hung on almost all counts. The second trial took place a year later in August 2008. The evidence again took 7 weeks to present, but this time the jury deliberated for only 8 days and convicted the defendants on all counts. The government’s success in the second trial seemed to hinge on its simplification of the case the second time around. There were fewer charges in the second trial, and the verdict form required only 108 separate findings instead of 225 in the first trial. The prosecution reduced the quantity of paper involved, introducing only 15 tubs of evidence in the second trial compared to 40 tubs in the first. The government relied less on documents and more on colorful expert testimony. It presented more theatrical evidence, simplified its themes, and repeated its main points. Judge Brimmer’s second example was a civil case, Commonwealth of Pennsylvania v. Monsanto. The case arose out of a fire in a building owned by the Pennsylvania Department of Transportation. Post-fire testing showed that the fire had released dangerous chemicals, PCBs, throughout the building. The State had to replace the building and sued the manufacturer of the materials, Monsanto, for the $225 million it cost to demolish the building and construct a new one. The first trial, starting in 1999, took over 16 months to complete. After 13 days of jury deliberations, the jury awarded $90 million in damages against Monsanto. After the Pennsylvania Supreme Court reversed the judgment and ordered a new trial, a retrial took place in 2007. This time the evidence took only five weeks to present. After six hours of deliberations, the jury returned a defense verdict. Monsanto took an entirely different approach to the case in its defense in the retrial. In the first trial, Monsanto had made a detailed rebuttal of all of the State’s points, and exhaustedly cross-examined all of the State’s expert witnesses. In the second trial, Monsanto streamlined the number of its arguments and kept its cross-examinations of the plaintiff’s experts to a minimum. Instead of attempting to rebut all of the plaintiff’s points, Monsanto instead focused on one internal inconsistency in the plaintiff’s case: notwithstanding the plaintiff’s present position of the dangers of PCBs, shortly after the fire the State had declared the building safe for occupancy. So what lessons does Judge Brimmer extract from these situations? He grouped the pointers in three primary categories: keep perspective, take chances, and don’t forget the equities of the case. Within each of these categories, Judge Brimmer had these specific pieces of advice: Keep Perspective: Don’t get buried in details; Prepare the jury instructions before discovery; Think like a teacher. Take Chances: Eliminate weak claims and defenses; Don’t fall in love with pet theories or claims. Don’t Forget the Equities: Equities will keep the jury focused; Equities often tell the story; Equities inspire jurors to vote for your client. The Faculty Welcomes the Honorable Philip A. Brimmer
Judging runs in the family for new United States District Judge Philip Brimmer. His father, Clarence Brimmer, is a longtime federal judge in the District of Wyoming, where Phil grew up. The senior Judge Brimmer still sits on the bench and now serves as a frequent source of advice for his son and new colleague —advice which the junior Brimmer considers very useful, though he admits that he does not always follow all of it. A glance at Judge Philip Brimmer’s resume makes clear that he has earned his own place on the bench. His academic record is impressive: he studied literature and history at Harvard, spent time at Oxford, and gained his law degree at Yale. He then gained a wide variety of practice experience, working as both a civil and a criminal lawyer. After law school, he clerked for two years for U.S. District Judge Zita Weinshienk, then spent several years as a civil attorney at the law firm of Kirkland and Ellis. Judge Brimmer has always been interested in public service, and in 1994 he joined the Denver District Attorney’s Office as a prosecutor. It was there he became a seasoned trial attorney. As a Deputy District Attorney, he started with a crushing caseload. Two weeks each month he faced a “trial week,” which meant he had to be prepared to start multiple trials on the first day of the week. It was a crash course, and he threw himself into the work, handling dozens upon dozens of trials. He later moved to the juvenile division, then to Denver District Court, trying all sorts of felonies. His litigating talents were noticed by then-District Attorney (and now-Governor) Bill Ritter, who promoted him in 2001 to Chief Deputy District Attorney. His talents were recognized elsewhere as well. On the morning of September 11, 2001, Brimmer received a call from James Allison, the Chief of the Criminal Division at the U.S. Attorney’s Office, asking him if he had time that day to have an interview at the U.S. Attorney’s Office. He came right over, and recalls it as an especially poignant day to interview for the job of representing the United States. He was hired, and quickly was promoted, first becoming the Chief of the Major Crimes Section, then the Chief of the Special Prosecutions Section, where he headed a team of experienced attorneys handling complex or unusual prosecutions. He himself handled some of the most complex cases in the office, including two capital cases that took several years to investigate and try. In October 2008, after being recommended by both Colorado senators and nominated by the White House for an open judgeship, Judge Brimmer was sworn in as a United States District Judge. He has welcomed the change. He especially has enjoyed getting back into the civil arena, where he started his practice before his long detour into criminal law. He loves the opportunity to address and decide novel issues every day. These days, Judge Brimmer spends much of his time in his chambers quietly reading and writing. These pursuits are ones he has long enjoyed, though often in a more literary way. In college at Harvard, he studied and wrote about T.S. Eliot’s works. He remains an active member of the Denver chapter of the James Joyce Society, a group that meets periodically to read and discuss Joyce’s most difficult work, Finnegan’s Wake — though, as Judge Brimmer notes, he hopes his writing is easier to decipher than Joyce’s. One of the first things Judge Brimmer wrote in his new job was his practice standards. In his experience, it is usually apparent when lawyers appearing before him have not taken the time to read those standards, and he observes that since he took the time to write them, lawyers should not be surprised if he enforces them. More generally, he urges lawyers to be well-prepared, but also to be flexible on their feet in the courtroom and not to launch into prepared speeches as the issues evolve. An aspect of Judge Brimmer that may not always come through on the bench is his sense of humor. He has long been known by his friends and colleagues for his wry wit and ability to recount any event in an entertaining way. He recognizes that in his new job, he needs to use humor judiciously and be sensitive to the context of a case and its human aspects, but hopes that his courtroom, in appropriate moments, does not always have to be wit-free. Judge Brimmer always comes across as low-key and calm, but he is highly disciplined and hard working. He logs long hours in his chambers. He loves foreign travel — usually on as a low budget as possible — but does not foresee any trips in his near future due to his very heavy caseload. But he hopes to save enough time for a few short trips to enjoy one of his favorite pastimes, fly fishing. He considers himself especially lucky that his wife, Dana — a behavioral scientist with the Centers for Disease Control and Prevention — enjoys fly fishing, too Overall, Judge Brimmer is finding the job of judging to be a satisfying one. He is deeply thankful to the other judges, magistrate judges, and staff, who he feels have all been enormously gracious and helpful during his transition. He looks forward to becoming the best and fairest judge he can be, and having a successful relationship with the attorneys appearing before him in the years to come. The Faculty of Federal Advocates offers him a warm welcome. The Faculty Welcomes the Honorable Christine M. Arguello
It didn’t take long for United States District Judge Christine Arguello to hold her first trial. Before her investiture in November 2008, Chief Judge Wiley Daniel called her and asked if she could take on a jury trial. When she asked when, he told her, “Next Monday.” She worked all weekend, and the trial went off without a hitch. “Ordinarily I would have prepared for weeks,” she commented. “But it was good to jump into the job.” Since donning the robe, Judge Arguello (pronounced “ar-GWAY-oh”) has kept up a furious pace, handling six trials in her first few months and dozens of other hearings and motions. Her schedule has been a hard one—she has had to work seven days a week, often more than twelve hours a day. But she has found the attorneys professional and civil and the experience a rewarding one. “I have been having a lot of fun,” she says. Her furious pace is nothing new to Arguello, who learned the value of hard work from her parents. She was born in 1955 in Thatcher, Colorado. Her father, a railroad worker, housed his family for a time in a boxcar. She grew up in southern Colorado, and from a young age she was determined to succeed. She was the first in her family to graduate from college, earning a bachelor’s degree in 1977 from the University of Colorado, and then attended Harvard Law School, where she graduated in 1980. After law school, Arguello began her law career in Florida as a law firm
associate, but her roots kept bringing her back to Colorado. In 1985,
she moved to Denver to take a position at the law firm of Holland & Hart. She
made partner, becoming the first Hispanic promoted to partner there—or,
for that matter, at any other similarly-sized firms in Denver. In 1991,
she left Colorado to pursue one of her true loves, teaching, as an Shortly after moving back to Colorado, Arguello was chosen to serve as Colorado’s Deputy Attorney General for State Services, where she worked for three years alongside then-Attorney General (and now-Senator) Ken Salazar. In July 2000, she was nominated by President Clinton for a Tenth Circuit judgeship, but her nomination was never acted upon by the Senate. In 2003, she returned to private practice, while also keeping a hand in teaching as a visiting professor at the University of Denver Law School. But public service called again: in 2006, she joined the University of Colorado as its Managing Senior Associate University Counsel. Arguello remained at CU until 2008, when she was recommended for an open district court judgeship by both of Colorado’s senators and nominated by the White House. In October 2008, she became the newest United States District Judge for the District of Colorado. Her transition to the bench has been a smooth one. She gives great credit to her colleagues and staff, who she says have been very welcoming and have provided her with invaluable advice. Judge Arguello has tackled her new job with typical gusto. She maintains a rigorous schedule, often working seven days a week. She starts her days very early, often before dawn, so she can get home for dinner with her children (she has four) and husband Ronnie, who she praises effusively as a huge source of support throughout her life. She has worked especially hard in her first few months to develop a set of written practice standards, a set of rules that she urges attorneys practicing before her to read but that she emphasizes is likely to be a work in progress. For example, she says the jury is still out on whether she will permit juries to take notes: she may consider allowing such note-taking in more complex cases. She has been impressed by the professionalism of the attorneys practicing before her, but that is not to say that she does not see room for improvement. In her experience so far, lawyers in civil practice often file briefs providing unnecessary detail, while those in criminal practice often err by not providing enough. Judge Arguello sees the perfect balance as somewhere in between — covering all the essentials but doing so succinctly. She suggests that lawyers writing lengthy briefs should picture her reading the brief on a weekend night, at the end of a long day, when her tolerance for unnecessary verbosity will be at a minimum. Overall, Judge Arguello finds the job exciting and fun and is working hard at it. She enjoys the decision-making process and the wide variety of issues she faces, and she always tries to keep in mind the people involved in the cases and the real impact law has on their lives. She is delighted to be on the bench, and looks forward to her new career. The Faculty of Federal Advocates offers her a warm welcome. Appellate Judges Tymkovich and Gorsuch Provide Advice
for Appellate Practitioners
On Friday, February 6, 2009, 10th Circuit Court of Appeals Judges Timothy Tymkovich and Neil Gorsuch appeared at the first FFA Brown Bag lunch presentation of 2009 in the Jury Assembly room of the Afred A. Arraj Courthouse. With an audience numbering close to one hundred, the moderated panel discussion focused on effective advocacy, both written and oral, before the Circuit Court of Appeals. The panel discussion with the judges was preceded by a fifteen minute introductory talk by 10th Circuit Clerk Betsy Shumaker who provided a list of the top ten mistakes to avoid when filing an appeal in the 10th Circuit. Advertised as a session for litigators or trial lawyers who appear infrequently before Colorado’s federal appellate court, the panel discussion was moderated by appellate specialist Elizabeth Harris of the Jacobs Chase law firm. A graduate of New York University Law School, Ms. Harris clerked for Judge Porfilio on the 10th Circuit, and served five years with the Federal Defenders office. She has briefed and argued cases in the 10th Circuit, the Colorado Court of Appeals and the Colorado Supreme Court. Nominated to the 10th Circuit by George W. Bush in 2003, Judge Tymkovich received a B.A. from Colorado College in 1979 and his J.D. from University of Colorado College of Law in 1982. After law school, he clerked for Colorado Chief Justice William Erickson from 1982 to 1983. Judge Tymkovich was Solicitor General for Colorado from 1991 to 1996. Judge Gorsuch received a B.A. from Columbia University, his J.D. from Harvard Law School and Doctorate of Legal Philosophy from Oxford University. Judge Gorsuch clerked for Judge David B. Sentelle on the United States Court of Appeals for the D.C. Circuit from 1991-1992, and then for United States Supreme Court Justices Byron White and Anthony Kennedy from 1993-1994. After 10 years in private practice, Gorsuch served as Deputy Associate Attorney General at the U.S. Department of Justice from 2005 until 2006. Judge Gorsuch was nominated by President George W. Bush in 2006. In keeping with the FFA’s stated mission of fostering a dialogue between the bench and bar, the hour-long session had elements of informality and humor, mixed with concrete tips for maximizing success in the Court of Appeals. The judges took numerous questions from the audience in addition to addressing the questions posed by Ms.Harris. Topics included whether the attorney who tried the case should argue the appeal; the value of “mooting” the appellate argument before a panel of colleagues; the importance of knowing in precise detail the record in a case; and the need for limiting both the number of written pages submitted and the arguments raised on appeal. Of particular interest to Moderator Harris was the advice that each and every part of the brief including the table of contents, is required for a reason, and can and should be used by an effective advocate to make the point. Both judges counseled that too many attorneys waste valuable podium time introducing colleagues and clients or recounting undisputed (and obvious) facts. As the judges made clear, the 15 minutes allocated each side for argument is very short, and every second should used to argue the client’s case. Judge Gorsuch recommended that all appellate advocates read a tongue-in-cheek article by 9th Circuit Judge Alex Kozinski titled, The Wrong Stuff: How You Too Can...Lose Your Appeal, found in the Montana Lawyer, October 1997 at 5. Much of the advice from Judges Gorsuch and Tymkovich mirrored that from Judge Kozinski, whose tips for losing an appeal include such gems as “First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief. . . . you will let the judges know you don't have an argument capable of being presented in a simple, direct, persuasive fashion.” The FFA is grateful to Judges Tymkovich and Gorsuch, and Clerk Shumaker for their time and their willingness to help improve the quality of legal practice and the administration of justice in the District of Colorado. Opportunities to Provide Legal Representation, Develop Federal Court Experience, and Earn CLE Credits The Faculty encourages its members to provide pro bono representation, gain more federal court experience, and earn CLE credits by participating in its Counsel/Co-Counsel Program. The Counsel/Co-Counsel program provides representation in civil cases in which a judge has determined, after reviewing the merits and complexity of a case, that the appointment of counsel is warranted. This longstanding and successful program is designed not only to provide legal assistance to pro se parties, but also to provide learning and mentoring opportunities to attorneys by pairing less-experienced with more-experienced attorneys. Additionally, under Rule 260.8 of the Colorado Rules of Civil Procedure, an attorney providing pro bono representation in Counsel/Co-Counsel case may receive up to 9 units of credit in a three-year compliance period. If you handle a Counsel/Co-Counsel case, please carefully review Rule 260.8 to insure that you receive the proper credit for your work. Attorneys who are interested in participating in the Counsel/Co-Counsel program should contact Ed Butler, Legal Officer of the United States District Court for the District of Colorado, at (303) 335-2043 or e-mail: Edward_Butler@cod.uscourts.gov . Mr. Butler will contact attorneys when appropriate cases become available for appointment. For more information about the Counsel/Co-Counsel program and the opportunity to receive CLE credits for this important service, please visit the Programs and Services section of the Faculty’s website: www.facultyfederaladvocates.org. Comments and Contact Information IF YOU HAVE ANY COMMENTS OR AN ARTICLE YOU WOULD LIKE CONSIDERED
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