Super Lawyers - Colorado 2017

authorization for a new judgeship in Colorado was in 1984. Since then, the population in the state has grown 69 percent: from 3,174,844 in

1984 to 5,355,866 in 2014.

“Most state courts don’t have the support
for a fulltime law clerk, do not have a bailiff,
don’t even have a court reporter,” says
Habas. “And when a judge has to bring in
anywhere from 30 to 150 jurors just for jury
All of which pushes the courts toward
non-trial solutions.

“Beginning in the late 1980’s, courts
became very focused on reducing delay,“
says Kourlis. “Standards were adopted
that set out target 'time to completion'
for different case types. Judges tried to
meet those standards and the unintended
consequence was the fact that they put
increased pressure on the parties to settle
cases—and settle early.“
Meanwhile, arbitration clauses have
become increasingly popular with
corporations. The surge in enforced
arbitration agreements—for everything
from student loans to car loans—steers
consumers into binding, private arbitration
that shuts out courtroom remedies. Last
August, nearly 40 Democratic U.S. senators
called on the Consumer Financial Protection
Bureau to crack down on forced arbitration.

ADR and mediation obviously have their
benefits: cost, efficiency, predictability.
“When you ask people what is it you like
about mediation, for example, people say,
‘We like the idea that we have a bit more
control over the outcome than if we go
before a judge,’” says Stetler. “I think having
Each solution has its place. “As much as
I’m a believer in the jury system,” says Levin,
“my strong preference is to talk settlement.

We have clients who say, ‘This is simply wrong and I want to teach them a lesson.

I just can’t let the insurance company get away with it.’ My response is, ‘I hear you, but as a general matter that’s not a reason to take the case to trial.’ They really need to look at what the value of their case is.

I acknowledge their principle arguments,
but at the end of the day it’s the value that
determines it.”
But are certain intangibles vanishing with
the jury trial? Such as trial skills? “It’s not like
riding a bike,” says Habas. “It is a perishable
skill. I know this from experience. I atrophied
from my years on the bench. The first case [I
tried again as a lawyer], I was terrified.”
More broadly, is a sense of civic duty
vanishing? “There are really only two places
in our society where the average citizen has
an opportunity to participate in the workings
of his government,” says Lyons. “One is the
power to vote. The other is to serve on a
jury.” He knows it has its problems. “People
who serve on juries are inconvenienced.
They’re generally not happy about it. But
most of the jurors I’ve talked to after the
jury trial, whether I’ve won or lost, have
expressed gratitude for how the system
works. They’ve reinforced the notion this is a
pretty damn good system we have here.”

PROPORTIONALITY
So what can be done to save the pretty
damn good system?

Netzorg, who was on the task force studying jury trials for the IAALS report, says the trend away from the jury trial may soon turn around. He cites a report by Magistrate Judge Michael Hegarty showing the number of trials in U.S. District Court in Colorado was actually on track to increase 10 or 15 percent in 2016. The key is a concept that was among the suggested guidelines in IAALS’ 2009 report: proportionality. Big, complicated cases can involve zealous discovery, but it’s not necessary in smaller, simpler cases.

“Thirty-eight states have now changed
their rules to incorporate some of these
principles,” Netzorg says. “And federal rules
were changed last year to make this concept
or proportionality front and center.”
He adds: “It’s one of the most important
things I’ve done in my 40-year career—more
important than any of the verdicts or cases—
because it has the potential of restoring our
system of justice so people can actually get
courts to decide cases without going broke.”
And if it doesn't?

“The fundamental reason for courts in our society is to resolve disputes, develop precedents, and for the notion that there is impartiality somewhere,” Kourlis says. “That there are all these private providers out there that are replicating the civil justice system is, to an extent, OK. But the notion that civil courts themselves will dry up and blow away? That’s not OK.”