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102 South Tejon Street, Suite 900 • Colorado Springs, Colorado 80903

The Games People Play

Author: MURRAY I. WEINER

In my February President’s column I made two modest suggestions to reduce both the cost of litigating in the El Paso County District Court and some of the frustration we all experience.  One suggestion was that we elevate the resolution of discovery disputes to a high priority.  My theory, as explained in the article, is that after six months of aggressive court involvement and enforcement of the rules, our court will not see another serious discovery dispute for years.  My second suggestion was that parties objecting to the amount or hourly rate of fees to be awarded by the court be required to submit copies of their own bills as a condition precedent to objecting to the amount of the fee award.  In the article I suggested that this simple requirement would do away with a great number of fee hearings, reducing both court time and costs to our clients.

I write briefs and file pleadings all the time.  When I read my opponents' responses and the court's orders, I often wonder whether anyone took the time to read what I wrote.  Not so with respect to my February column.  I must have hit a raw nerve.  I have been inundated with comments, almost all positive.  No one (not even me) is sure that my suggestions will do any good.  But to a person, they all believe that something needs to be done and that more (and more serious) court involvement is needed.

To me, the most interesting thing about the response to my February column was the suggestions I received regarding future columns and the stories offered by my colleagues as examples of the kind of bad conduct that they want reined in.

One of our judges suggested that I write an article about "fees."  Of course, what the judge had not considered is that I am obligated to write five more articles after this one, and an article devoted exclusively to fees would reduce my limited readership to none.

Another judge suggested that I write about the "duty to confer," something he said was "honored only in the breach."  At first I thought this was a pretty boring topic as well.  I mean how could I possibly make this topic interesting?  Then I witnessed what the judge was referring to for myself and decided it was worthy of discussion.

Colorado Rule of Civil Procedure 121, § 1-15 is entitled "Determination of Motions." The title of subsection 8 is "Duty to Confer."  That subsection states as follow:

Moving counsel shall confer with opposing counsel before filing a motion.  The motion shall, at the beginning, contain a certification that the movant in good faith has conferred with opposing counsel about the motion.  If the relief sought by the motion has been agreed to by the parties or will not be opposed, the court shall be so advised in the motion.  If no conference has occurred, the reason why shall be stated.

The policy behind this rule is clear.  It is intended to cause counsel for the parties to determine for themselves in good faith whether the matter which is the subject of the proposed motion actually requires court resolution.  I am told by my colleagues in the criminal and domestic relations arenas that they have similar duties to confer.  [As an aside, although Judge Hall did not suggest this topic, he did tell me that during his years on the bench he often encountered situations where after hearing the nature of a motion in open court, the non-moving party agreed to the relief sought, having not first been consulted by moving counsel prior to the filing of the motion.]

Back to my story.  Some weeks ago I had the "pleasure" of spending Saturday and Sunday in the office preparing for argument in the Court of Appeals.  At 11:46 a.m. on Saturday, my computer told me that a pleading had been filed in a case being handled by one of my partners.  The motion which included the word “Emergency,” sought to vacate a hearing set by the court for the next Wednesday.  The Motion contained the following certification pursuant to C.R.C.P. 121, § 1-15(8):

Undersigned counsel certifies that he has conferred in good faith with counsel for Plaintiff about this motion.

Sometime later I walked by the office fax machine and noticed a letter to my partner from the attorney who filed the "Emergency Motion."  The letter was received at my office at 11:06 a.m. on Saturday; some forty minutes prior to the filing of the Motion.  The letter asked my partner his position regarding the Emergency Motion, which was enclosed with the letter.

There were no communications between counsel for the moving party and my partner as alleged in the moving party’s "certification."  I was the only person in the office that day, and my partner confirmed in a phone call with me later on Saturday afternoon that he knew nothing about the Motion filed by the moving party or any perceived "emergency."

How is it possible to certify you have "conferred in good faith," when you have not spoken with opposing counsel?  Is the certification requirement of Rule 121, §1-15(8) satisfied by merely sending letters, voice mails or emails to your opponent?  What if you send them to his or her office on a Saturday or a Sunday, or over the noon hour, when you know or should know that he or she is not there?  This brings new meaning to the word "quibbling."

Perhaps more disturbing than the fact that the certification language has become or may in fact be meaningless, is the failure of the courts to do anything about it.  Do attorneys make false statements so often in pleadings that our judges believe it is pointless to call them on the false statements?  I hope not.  A pointed order that specifically comments on the exaggerated certification would likely be a sufficient deterrent.  I just read such an order issued by U.S. District Judge Phillip Figa.  I am glad I was not the lawyer who failed to confer in good faith with opposing counsel in that case.  I do not think it will happen again.

A colleague of mine summed it up very well in an email he sent me in response to my February President’s column.  After providing me with three or four "war" stories about problem attorneys, discovery disputes, and certification issues, he said the following about abusive discovery tactics and the like:

These antics would be funny if these lawyers hadn't been so successful in derailing proceedings and running up costs for the opposing side -- that is the piece the bench seems to forget, the real consequences of letting a lawyer get away with these expensive games ... there is a real cost to clients and the integrity of the judicial system.  Allowing lawyers to make false statements and obstruct the system without consequences or even comment undermines the legitimacy of the judicial system as a whole and permits real harm to the client that is the victim of these games.

My colleague suggested that I blame him if his statement sounds too "finger-wagging."  However, I agree with what he wrote and I am happy to take the heat.


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