Litigation is not the answer to school violence

Monday, April 13, 2015

“Hard cases make bad laws.” – Justice Oliver Wendell Holmes

Justice Holmes’ adage seems to refer to difficult cases, but evidence suggests that he may have been talking about “hard cases” that evoke sympathy.

Few cases evoke sympathy and grief more than the death of a child. Just such a tragedy has led to Senate Bill 213.

On Dec. 13, 2013, 17-year-old Claire Davis was shot at point-blank range by a fellow student at Arapahoe High School. The assailant then took his own life, and Davis died from her injuries eight days later.

Davis’ parents understandably sought to learn what the school might have known about the student shooter. Those efforts were thwarted until recently when Littleton Public Schools approved a plan to release that information in order to avoid litigation.

By contrast, SB 213 would encourage litigation in the wake of such tragedies. The bill imposes upon schools a liability that the law doesn’t even apply to law enforcement.

Our courts, including the U.S. Supreme Court, have repeatedly found that law enforcement agencies cannot be sued for failure to prevent a crime from happening. Public safety is the primary purpose of law enforcement; it’s their area of expertise. Schools leaders, while understanding full well that safety is crucial to learning, must also provide a quality education, put good teachers in the classroom, and maintain sound buildings and transportation vehicles.

School leaders, unlike law enforcement officers, are not public safety experts. Yet SB 213 would hold schools and school personnel to a higher standard than law enforcement.

“Public school parents should have a reasonable expectation . . . that school officials will have taken reasonable care to provide for their (children’s) safety, just as they provide for their education,” Sen. Cadman explained.

The problem for schools is that even if they do take “reasonable care,” they cannot guarantee that a tragedy will not happen. Under SB 213, when those tragedies happen, schools will be sued, even if they have taken “reasonable care.”

Unless SB 213 is amended, it will certainly create more litigation.  Whether it will create safer schools is a dubious proposition.

How trial lawyers troll for clients

Wednesday, April 08, 2015

Wonder why trial lawyers spend so much money advertising for clients? One answer is that volume is a key factor in the business model of contingency-fee attorneys – especially those who practice “mass torts.” In addition to our local ambulance chasers, late night cable TV is loaded with advertisements for victims of mesothelioma and pelvic mesh.

Ironically, mesothelioma cases peaked 20 years, writes Tiger Joyce, president of the American Tort Reform Association, in the Wall Street Journal.

  • Law firms specializing in asbestos claims spend roughly $30 million a year on advertising and those litigating pelvic mesh claims spent $52 million last year to troll for clients, according to analysis by the Silverstein Group.
  • “Does the need to recoup marketing expenses create perverse incentives to pursue speculative or even illegitimate claims, for instance, blaming lifelong smokers’ lung cancers on . . . trace exposures to asbestos?” Joyce wonders. A jury found two Pittsburgh-based plaintiffs’ lawyers liable for fraud in a multimillion-dollar civil racketeering case.
  • Transcripts of recruiters’ cold calls to unsuspecting women who had not even undergone mesh implants showed brazen invitations to collect “$30,000 to $40,000.”
  • Congress, the Federal Trade Commission, state attorneys general and other authorities charged with protecting the public interest should also begin scrutinizing personal-injury lawyers’ marketing as zealously as they scrutinize the marketing of countless other businesses.

Several bills sacked, others scrambling

Friday, April 03, 2015

Three recently-introduced bills met an early demise recently, paring down the number of bills that CCJL and CO-LAW are following:

  • House Judiciary Committee killed House Bill 1272, which sought to prohibit use of the laches defense to bar timely claims.  
  • The same fate met House Bill 1253, regarding transfer of assets, in House Business Committee.
  • And a few days later, House Business nixed House Bill 1293 which proposed changes to the statute of limitations for tenant claims in rental disputes.

With the legislature taking off Good Friday, several bills loom on next week’s calendar. Senate Bills 91 and 177, both dealing with construction litigation claims, have been hanging on the Senate calendar since clearing committee, while supporters try to find a compromise acceptable to House leadership but which could still provide meaningful reform toward construction affordability.

Who or what is ‘laches’?

Monday, March 23, 2015

A bill recently introduced in the Colorado General Assembly would prohibit the use of “the doctrine of laches to bar a civil action or claim as untimely” so long as that claim was filed within the applicable statute of limitations.

Non-attorneys – and those attorneys who tended to doze off in law school – asked, “What or who is laches?”

Laches is derived from a French term for “remissness” or “slackness.” The legal lachesdoctrine is based on the maxim that “equity aids the vigilant, not the sleeping ones,” according to Black’s Law Dictionary. Courts apply laches when the party bringing a claim has unnecessarily or unreasonably delayed that claim in a way that particularly disadvantages the opposing party. provides the following hypotheticals:

  • Knowing the correct property line, Oliver Owner fails to bring a lawsuit to establish title to a portion of real estate until Nat Neighbor has built a house which encroaches on the property in which Owner has title.
  • Susan Smart has a legitimate claim against her old firm for sexual harassment, but waits three years to come forward and file a lawsuit, after the employee who caused the problem has died, and the witnesses have all left the company and scattered around the country.

Laches is typically, although not always, brought in cases seeking equitable relief, such as an injunction, but seldom used in cases seeking damages. Obviously, when a claimant seeks both, this distinction can be a bone of contention.

House Bill 1272, which would prohibit courts from applying laches when a statute of limitations is also applicable, is sponsored by Rep. Daneya Esgar, D-Pueblo, and Sen. Chris Holbert, R-Parker.

Colorado Civil Justice League believes courts should be allowed to avail themselves of necessary tools to reject claims that are not presented in a timely manner. Accordingly, CCJL opposes HB 1272.

Bill gives homeless new rights to sue

Tuesday, March 17, 2015

A bill touted as creating a homeless “bill of rights” – apparently the one in the constitution isn’t sufficient – is little more than a license to sue on behalf of homeless people.

House Bill 1264, sponsored by Rep. Joe Salazar (D-Denver) and Sen. John Kefalas (D-Fort Collins), prohibits discrimination “on the basis of housing status.”  Among other things, it prohibits laws and ordinates that limit use of a “public space” through time constraints that discriminate against homeless persons.

So, local ordinances against sleeping or loitering on a public sidewalk or in a municipal park would be deemed to “disproportionately impact people without homes and people who have no private place to rest or seek nourishment.”

Yes, in the same way that laws against speeding and reckless driving disproportionately impact people who like to drive fast but don’t have a racing oval or dragstrip of their own.

These “homeless rights” would essentially make public property or, even, someone else’s property (e.g., shopping malls) places where the homeless would be entitled to sleep, sit, rest and share food regardless of the impact it causes to other people who use the property and regardless of local government’s or property owners’ concerns about public health or safety.

Anyone claiming that their “homeless rights” have been violated could sue for damages up to $1,000 per violation, plus attorney fees.  A group of 100 homeless people could sue for $100,000 per day. While the sponsors of HB 1264 may well have the best interests of homeless people at heart, this bill violates the existing rights of other citizens to use and enjoy public property within the common-sense boundaries established by local municipalities or property owners.

Employers get no help from House Judiciary

Tuesday, February 24, 2015

If the last election signaled a move toward the middle at the State Capitol, no one bothered to tell the House Judiciary Committee which is beginning to look like the place where good bills go to die - especially if those bills trample on the turf of trial lawyers.

On a 7-6 party-line vote, the House Judiciary Committee killed a modest effort to roll back part of the “Sue Your Boss Bill” from 2013 by repealing the portion that allows disgruntled employees to seek punitive damages as part of claims alleging employment discrimination.

A majority of states do not permit punitive damages against employers.  Not our neighbors – Arizona, Kansas, Nebraska, New Mexico, Oklahoma or Utah.  And not even states like New York or Illinois where trial lawyers are firmly entrenched in the state legislature.

But the 2013 Sue You Boss Bill opened the door for lawsuits against any employer to seek punitive damages and pain-and-suffering damages.  That law also failed to exclude the smallest employers – contrary to the law in 36 other states.

House Bill 1172, sponsored by Rep. Brian DelGrosso (R-Loveland), would have repealed the punitive damages portion of the law.  Unfortunately, the bill was killed in committee and not allowed the opportunity for a vote in the full House of Representatives.  Voting to kill the bill were: Reps. John Buckner (D-Aurora), Lois Court (D-Denver), Mike Foote (D-Lafayette), Brittany Pettersen (D-Denver), Joe Salazar (D-Thornton), Pete Lee (D-Colorado Springs), Daniel Kagan (D-Greenwood Village). Voting to pass the bill were: Reps. Terri Carver (R-Colorado Springs), Tim Dore (R-Elizabeth), Polly Lawrence (R-Castle Rock), Paul Lundeen (R-Monument), Kevin Van Winkle (R-Highlands Ranch), Rep. Yeulin Willett (R-Grand Junction). More coverage of House Bill 1172: Denver Business Journal, Colorado Association of Commerce & Industry.

Senate bill aims toward home affordability

Thursday, February 12, 2015

Affordable condos and townhomes are rare as hens' teeth in much of Colorado.  That's because very few new units are being built.  That's largely due to the inability of builders to get affordable insurance.  And that's because Colorado law has made lawsuits against homebuilders quite profitable - for trial lawyers. Now, two Colorado Senators, Mark Scheffel (R-Parker) and Jessie Ulibarri (D-Adams County) are again teaming up to try to stimulate construction of owner-occupied multi-family housing developments by introducing Senate Bill 177. SB 177 would require a majority of all homeowners in a development to approve of any litigation against a homebuilder brought by the homeowners association.  It would also require that homeowners be fully informed of the financial complications that ongoing litigation can cause to their property should they want to sell or re-finance. Read more from The Denver Post or  Denver Business Journal or read the bill for yourself here .

Lineup changes at State Capitol

Monday, February 02, 2015

This week brings two noteworthy changes at the State Capitol:

The resignation a few weeks ago of Assistant Minority Leader Libby Szabo (R-Arvada), who was appointed Jefferson County Commissioner, triggered several changes in the House Republican Caucus.

First, a vacancy committee chose Lang Sias to replace Szabo as the State Representative for House District 27 in northern Jefferson County.  Sias, a former Navy pilot who now flies for FedEx, gets his chance under the Gold Dome after narrow losses for State Senate, in the 2012 general election vs. former Sen. Evie Hudak (D-Arvada) and then in the 2014 Republican primary to the eventual winner, Sen. Laura Woods (R-Arvada).

Republicans will soon choose a new Assistant Minority Leader.  Initial reports cited two candidates for the job, Reps. Polly Lawrence of Castle Rock and Clarice Navarro Ratzlaff of Pueblo. On the other side of the glass, Gov. John Hickenlooper is searching for a new lobbyist after Tracee Bentley, who helped shepherd the governor’s legislative agenda in 2014, announced that she would be taking a job with the newly-formed Colorado Petroleum Council, a project of the American Petroleum Institute.  Prior to serving as the governor’s legislative liason, Bentley was deputy director of the Colorado Energy Office.

'Patent trolls' in House Business spotlight

Tuesday, January 27, 2015

Thursday's House Business, Labor and Technology Committee hearing might be sub-titled, Introduction to Patent Trolling, as legislators get their first look at legislation to address the obscure practice - bordering on extortion - of asserting dubious claims of patent infringement along with threats of litigation.

According to a recent piece in The Atlantic, the number of patent troll lawsuits has increased six-fold and the number of firms sued has increased by nine-fold.  In fact, the majority of patent lawsuits are now filed by "trolls," reports the Harvard Business Review.

So, what is a patent troll?  A patent troll is someone with a plausible but dubious claim to a patent who adopts a business strategy of sending letters alleging patent infringement to companies that must choose between undertaking costly legal research to determine if patent infringement exists or pay the troll a licensing fee.  Typically, the troll has little risk and little at stake but can cause enormous expense to his or her target.

According to The Atlantic:

Two key ingredients of the patent troll's business model are: 1) a litigation process that is very costly for defendants, and, 2) patents that are overly broad or vague so that they can be interpreted to cover commonly used technologies and hence snare many defendants. Given the cost, many defendants are willing to pay the troll to avoid a lawsuit even if the suit is not justified.

House Bill 1063 (sponsored by Rep. Dan Pabon, D-Denver, and Sen. David Balmer, R-Centennial) addresses this problem for Colorado businesses, particularly banks, by ensuring that a legitimate patent infringement case can proceed while granting the Colorado Attorney General enforcement authority when patent infringement allegations are not made in good faith. The bill is scheduled for hearing on Thursday at 1:30 p.m. in Room LSB-A.

Committees hold key to civil justice legislation

Tuesday, January 20, 2015

During the 2015 legislation session, several committees are likely to hear key legislation related to our civil justice system.  Here's a quick look at those the House and Senate Judiciary committees and legislators who chair them: HOUSE JUDICIARY COMMITTEE Rep. Daniel Kagan (D-Denver), Chair An attorney, Rep. Kagan and his wife Faye managed a law firm specializing in representing plaintiffs who had been injured by negligently designed products, as well as criminal defendants  In 1996, he became the managing director of Kagan Textiles Limited, a small, family business which was on the verge of collapse.  He held the position for over 12 years and successfully brought derelict textile manufacturing plants back to economic life in what he describes as a "socially responsible" way. Rep. Pete Lee (D-Colorado Springs), Vice Chair Rep. John Buckner (D-Aurora) Rep. Terri Carver (R-Colorado Springs) Rep. Lois Court (D-Denver) Rep. Tim Dore (R-Elizabeth) Rep. Mike Foote (D-Lafayette) Rep. Polly Lawrence (R-Castle Rock) Rep. Paul Lundeen (R-Monument) Rep. Brittany Pettersen (D-Denver) Rep. Joe Salazar (D-Thornton) Rep. Kevin Van Winkle (R-Highlands Ranch) Rep. Yeulin Willett (R-Grand Junction)   SENATE JUDICIARY COMMITTEE Sen. Ellen Roberts (R-Durango), Chair Sen. Roberts, who also serves as Senate President Pro Tem, is an attorney specializing in estate planning, probate and business law.  She is beginning her second term in the Senate after serving two terms in the House of Representatives.  She serves on the board of directors of 1st National Bank of Durango, is the past chairwoman of the Mercy Regional Medical Center board, and is a member of a number of other local community groups.  She is a past winner of CCJL's Common Sense in the Courtroom Award. Sen. Kevin Lundberg (R-Berthoud), Vice Chair Sen. John Cooke (R-Greeley) Sen. Lucia Guzman (D-Denver) Sen. Michael Merrifield (D-Manitou Springs)   HOUSE BUSINESS, LABOR & TECHNOLOGY COMMITTEE Rep. Angela Williams (D-Denver), Chair Rep. Williams, who also serves as Democratic Caucus Chair, has been a small business owner for many years and currently owns the Angela Williams Agency, an insurance consulting firm. With a strong business background, her primary focus in the legislature has been to reduce red tape on small businesses and protect the health, safety and rights of Colorado workers.  She has a degree in criminal justice from Northeastern State University in Oklahoma and is a past recipient of CCJL's Common Sense in the Courtroom Award. Rep. Tracy Kraft-Tharp (D-Arvada), Vice Chair Rep. Jeni Arndt (D-Fort Collins) Rep. Alec Garnett (D-Denver) Rep. Clarice Navarro Ratzlaff (R-Pueblo West) Rep. Dan Nordberg (R-Colorado Springs) Rep. Dan Pabon (D-Denver) Rep. Paul Rosenthal (D-Denver) Rep. Kit Roupe (R-Colorado Springs) Rep. Libby Szabo (R-Arvada) *Resigned Jan. 16. Rep. Jack Tate (R-Centennial) Rep. Dan Thurlow (R-Grand Junction) Rep. Faith Winter (D-Westminster)   SENATE BUSINESS, LABOR & TECHNOLOGY COMMITTEE Sen. David Balmer (R-Centennial), Chair Sen. Balmer is a former senior manager for Cherokee Investment Partners, the nation's largest private equity firm specializing in brownfield redevelopment.  As a Lieutenant Colonell in the U.S. Army he served in deployments to Afghanistan and Bosnia.  He is in his first term in the Senate after serving seven years in the House.  He is a graduate of the University of North Caroline and Wake Forest Law School.  He is a past recipient of CCJL's Common Sense in the Courtroom Award. Sen. Chris Holbert (R-Parker), Vice Chair Sen. Irene Aguilar (D-Denver) Sen. Randy Baumgardner (R-Cowdrey) Sen. Rollie Heath (D-Boulder) Sen. Cheri Jahn (D-Wheat Ridge) Sen. Tim Neville (R-Littleton) Sen. Linda Newell (D-Littleton) Sen. Laura Woods (R-Arvada)