A Practical Guide to Trials by Appointment Under Crs Section 13-3-111

• Publication year: 1997
• Pages: 69

26 Colo.Law. 69 Colorado Lawyer 1997.

1997, November, Pg. 69. A Practical Guide to Trials by Appointment Under CRS Section 13-3-111

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69

Vol.26, No. 11, Pg. 69

The Colorado Lawyer
November 1997
Vol. 26, No. 11 [Page 69]

Specialty Law Columns
The Civil Litigator
A Practical Guide to Trials by "Appointment" Under CRS § 13-3-111
by David S. Prince

Jokes about the difficulties of scheduling a home service call by the telephone company or the cable company are an ingrained part of American culture. Most civil trial lawyers however, would give anything to obtain something even close to that degree of certainty in trial schedules. Use of an inactive judge under CRS § 13-3-111 provides one means of being able to conduct a civil trial by "appointment." This article is intended to outline the issues associated with pursuing such an appointment as well as the means of pursuing one

The Problem

The following is one recent example of a situation all too familiar to experienced trial lawyers. Counsel appear in court shortly before their scheduled trial date for their final pretrial conference. Because counsel have made this trip several times previously, little remains to be done Their primary purpose is to confirm the details of their trial schedule. While each of their prior trips had resulted in a last-minute continuance, counsel are confident that they will go to trial this time. As a result of sheer staying-power, their case has seniority over most of the other pending cases. Additionally, counsel had continued the trial date for a long period after their last attempt to go to trial, in order to obtain a "first setting."

Considering the age of their case and its "first setting," counsel hold an optimistic belief in the security of their trial date. Consequently, they are both stunned when the court abruptly advises them that they are now third on its docket. They both protest loudly. The court listens with a sympathetic but unyielding ear. Counsel next explore alternatives, such as the use of a senior judge or a transfer, if any other district has an opening, but none is available.

A quick check with the counsel for the two cases ahead of them on the docket reveals the worst possible situation--unequivocal uncertainty. Both cases have ongoing settlement discussions, with settlement unlikely but still possible.

In this example, the uncertainty has more than the usual level of inconvenience for both counsel. One's client is an older woman living in California. Her life savings of approximately $500,000 has been tied up in the court registry for over two and one-half years. During this time, she has had practically no independent financial means. The other attorney's clients had originally resided in Colorado but moved to the east coast more than a year previously. Counsel both have a number of out-of-state fact witnesses to be brought to town for the trial, as well as out-of-state expert witnesses with their own scheduling demands and cancellation fees. In short, all of the parties have a great deal to lose if counsel were to gear up for trial again, only to receive another last-minute continuance.

Counsel revisit their settlement prospects but quickly recall why their mediation had been unsuccessful. They consider a traditional private trial--effectively, binding arbitration--and quickly reject it as unsuitable for their needs. One attorney wants to preserve his right to a jury and does not believe that a private arbiter would have the authority to seat a traditional jury. The other attorney wants to preserve his right of appeal on a key legal issue, and rights of appeal from arbitration awards are severely limited. Neither attorney is sure if an appellate court would recognize a stipulation to create appellate jurisdiction beyond that provided by statute.

A Possible Solution

Both attorneys lament the frustration and waste of this recurring predicament. Another attorney mentions that she had heard that counsel could privately arrange a trial through judicial appointment and wondered if that process might be of assistance. A bit of legal research reveals CRS §...