Legislators need a lawsuit diet

Originally published in Colorado Politics.

By Mark Hillman

Businesses that fuel Colorado’s economic engine can’t be blamed for cringing at the specter of the Colorado legislature’s return this month.  Plaintiffs lawyers, however, are not cringing.  Instead, the people who pay to put their faces on billboards along our busiest highways are licking their chops.

Last year, lawmakers went on a lawsuit binge, introducing a record 25 bills that used private lawsuits for enforcement, rather than entrusting enforcement to a government agency.  According to the Common Sense Institute, 43 similar bills have been introduced since 2019.

Using litigation for enforcement violates the constitutional separation of powers.  As most of us learned in school, the legislative branch writes the laws, the executive branch enforces the law, and the judicial branch applies or interprets the law.  Enforcement agencies are accountable to our elected officials; that’s why enforcement of state laws is typically their responsibility.  Billboard lawyers, by contrast, are accountable to no one except their clients, and both are given an incentive to sue by this misguided legislation.

Lawsuits should be a last resort, used when all other options are exhausted.  Instead, private lawsuits make litigation a primary means of enforcement.  A business owner’s first formal notification of a complaint shouldn’t be when served with a lawsuit. read more…

LAB member Jordan Lipp named 2023 Lawyer of the Year

Jordan Lipp, a member attorney at Childs McCune, has been selected as 2023 Lawyer of the Year by Colorado Civil Justice League.  He will receive this award at CCJL’s Legislative Awards Luncheon on Oct. 10.

A longtime member of CCJL’s Legal Advisory Board, Jordan has broad experience representing manufacturers, including car, truck, farm and construction machinery, and oil and gas companies.  He also works regularly with companies regulated by the Food and Drug Administration.

However, Jordan’s expertise in outdoor recreation has been particularly valuable to CCJL and its members.  Jordan was instrumental in drafting recent amendments to provide liability protection for agri-tourism.  He likewise has practiced extensively in the Ski Safety Act and Equine Activities Act.

When a bill to address landowner liability was introduced in the legislature earlier this year, Jordan was our first call to evaluate the bill and suggest improvements.  He jumped right in and has worked closely with proponents.  He also provided informed and persuasive testimony during the bill’s only hearing.  He has continued to work on behalf of CCJL with the Colorado Recreational Use Coalition during the interim.

Former Justice Rebecca Kourlis will keynote the Oct. 10 awards event, which will also honor legislators with the Common Sense in the Courtroom Award.  The event is sponsored by American Furniture Warehouse, COPIC, Colorado Hospital Association, State Farm, Rocky Mountain Mechanical Contractors Association, Husch Blackwell, Spencer Fane and Wheeler Trigg O’Donnell.

CCJL announces Common Sense legislators for 2023

DENVER — Colorado Civil Justice League announced winners of its Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse and protecting small business and working families from the cost of frivolous litigation.

Awards will be presented at a luncheon on Oct. 10 at the Denver Four Seasons, sponsored by American Furniture Warehouse, COPIC, Colorado Hospital Association, State Farm, Rocky Mountain Mechanical Contractors Association, Husch Blackwell, Spencer Fane and Wheeler Trigg O’Donnell.

CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.

“Common Sense in the Courtroom requires justice for those who have been harmed by someone else, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

Unfortunately, the Colorado General Assembly created too many new opportunities for lawsuits – against employers, property owners, and manufactuers – during its 2023 legislative session.

This continues a dismal trend of creating higher costs for Colorado businesses.  A new study by Common Sense Institute shows that in just the past four years, the state legislature has passed at least 43 bills that expand litigation.

However, bipartisan coalitions came together to put the brakes on expansions of lawsuits by creating new opportunities to sue for “emotional damages” or to seek treble damages.

“At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state’s economic health,” Hillman said.

Common Sense in the Courtroom Award recipients include:

  • Representatives Ryan Armagost (Bethoud), Shannon Bird (Westminster), Rod Bockenfeld (Watkins), Scott Bottoms (Colorado Springs), Mary Bradfield (Colorado Springs), Brandi Bradley (Littleton), Marc Catlin (Montrose), Ken DeGraaf (Colorado Springs), Gabe Evans (Fort Lupton), Lisa Frizell (Castle Rock), Anthony Hartsook (Parker), Richard Holtorf (Akron), Stephanie Luck (Penrose), Mike Lynch (Fort Collins), Bob Marshall (Highlands Ranch), Barbara McLachlan (Durango), Rose Pugliese (Colorado Springs), Marc Snyder (Manitou Springs), Matt Soper (Delta), Rick Taggart (Grand Junction), Ron Weinberg (Loveland), Don Wilson (Monument), and Ty Winter (Trinidad).

 

  • Senators Mark Baisley (Woodland Park), Bob Gardner (Colorado Springs), Joann Ginal (Fort Collins), Barbara Kirkmeyer (Brighton), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Kyle Mullica (Thornton), Byron Pelton (Sterling), Rod Pelton (Cheyenne Wells), Kevin Priola (Henderson), Janice Rich (Grand Junction), Dylan Roberts (Eagle), Cleave Simpson (Alamosa), Jim Smallwood (Parker), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), and Rachel Zenzinger (Arvada).

Lawsuits are stalling entry-level housing, driving up prices

Recently at Gazette.com, Colorado Springs Chamber of Commerce president Johanna Reeder Kleymeyer offered a concise explanation of the primary barrier to construction of affordable entry-level housing in Colorado:

Construction defects lawsuits in Colorado have become a business unto itself. Law firms make millions by hiring forensic experts to “find” defects for up to six years after construction. When one defect is found in one unit, it is then assumed that the same defect is present in all units within the project.

The next step is to engage the insurance company of the general contractor, and potentially all subcontractors, and any architect or engineer on a project hoping to secure millions in settlement of the defects. Once a settlement is reached based upon the cost to “repair,” the law firm takes a percentage (30-40%) of the award, and the remainder goes to the HOA to resolve the defects. With only a portion of the settlement, many residents cannot actually complete the repairs. The only winners in this system are the trial lawyers.

One solution that the builders have requested for years is the right to repair. This would allow the contractor to fix the problems identified with the cooperation of the owners. These repairs would address the list identified and be paid for by the contractor. The owners win because the repairs are made. The contractor wins because they want a positive relationship with their buyers and can control the costs associated with the repairs. Fortunately, the trial lawyers cannot collect a large payday because there is no financial settlement.

Construction defects do occur. Homeowners have a right to have them repaired. The laws in the state of Colorado do not strike a balance and have created significant risk to builders.

Lawsuits should be last resort in march to disability access

From Colorado Politics op-ed by CCJL executive director Mark Hillman:

State Rep. David Ortiz (D-Littleton) makes a compelling advocate for the rights and struggles of disabled Coloradans.

“I lived 30 years as an able-bodied leg-walker, a five-minute-mile running, hard-charging combat aviator – until a crash in Afghanistan left me paralyzed from the waist down,” he told the House Judiciary Committee.

His House Bill 1032 would change Colorado law to specifically allow lawsuits regarding disability access violations to seek “emotional distress” damages of up to $642,180 and to require defendants to pay attorney fees and costs for prevailing plaintiffs.

That’s where Coloradans who have defended against disability lawsuits cry foul.  HB 1032 doesn’t increase damages only in cases in which violations are “blatant” or “obvious.”  It creates a six-figure incentive to litigate accessibility problems rather than resolve them.  Even the bill’s supporters acknowledge that lawsuits typically take two years to resolve.

“In my experience, the best laws have both a carrot and a stick,” observed Rep. Marc Snyder (D-Manitou Springs).  “I see a lot of sticks here, but I don’t see any carrots.”

Except for a few bad actors, the most efficient means of resolving accessibility problems might be personal contact with the business.  Litigation should be a last resort.

Misplacing the blame for mass shootings

From the Denver Gazette, op-ed by CCJL executive director Mark Hillman:

Last year, the Colorado General Assembly demonstrated the good sense to pass Senate Bill 115, recogning that property owners are not liable for actions committed on their property by criminals.  It didn’t matter, legislators agreed, if the property owner operated a controversial business.  Ultimate responsibility for harm rests with the person who pulled the trigger.

Less than a year later, some legislators now propose that Colorado turn this logic on its head in order to make another controversial industry – firearms manufacturers and retailers – liable for others’ irrational actions.  This is akin to holding car manufacturers responsible for drunk drivers or, worse, for a deranged individual who uses a vehicle to run down pedestrians.

Understandably, lawmakers are desperately searching for elusive solutions to the tragedy of mass shootings.  Even “red flag laws” have not been especially effective in proactively stopping potential mass shooters, so proponents now seek to harass gun manufacturers out of business through endless litigation.  That may feel good in the heat of the moment, but this bill will do nothing to stop criminals or the mentally ill from inflicting harm on innocent Americans.

Legislators chosen for ‘Common Sense’ awards for 2022

DENVER — Colorado Civil Justice League announced winners of its  Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse and protecting small business and working families from the cost of frivolous litigation.

Awards will be presented at a luncheon on Oct. 7 at the Denver Four Seasons, sponsored by American Furniture Warehouse, COPIC, Colorado Hospital Association, State Farm, Rocky Mountain Mechanical Contractors Association, Husch Blackwell, Spencer Fane and Wheeler Trigg O’Donnell.

CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.

“Common Sense in the Courtroom requires justice for those who have been harmed by someone else, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

When the Colorado General Assembly adjourned in May, it’s record on civil justice was nothing to write home about.  This was no surprise given the expansions of liability handed to TV lawyers over the past four years.  But for Colorado businesses, it was another round of “the beatings will continue until morale improves.”

Legislators did restore sanity to premises liability law (Senate Bill 115), stopped an attempt to undermine employers’ ability to make workplace safety decisions (House Bill 1152), and put the brakes on an attempt to kill one of the few remaining protections against frivolous lawsuits (HB 1272).

“At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state’s economic health,” Hillman said.

Unfortunately, legislators cast too many votes to expand liability and to transfer or entrust responsibility for enforcing our state’s laws to private contingency-fee lawyers.

Common Sense in the Courtroom Award recipients include:

Representatives Mark Baisley (Roxborough Park), Shannon Bird (Westminster), Rod Bockenfeld (Watkins), Mary Bradfield (Colorado Springs), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Tim Geitner (Peyton), Richard Holtorf (Akron), Colin Larson (Littleton), Stephanie Luck (Penrose), Mike Lynch (Wellington), Julie McCluskie (Dillon), Hugh McKean (Loveland), Barbara McLachlan (Durango), Rod Pelton (Cheyenne Wells), Andy Pico (Colorado Springs), Kim Ransom (Douglas County), Janice Rich (Grand Junction), Dylan Roberts (Eagle), Shane Sandridge (Colorado Springs), Marc Snyder (Manitou Springs), Matt Soper (Delta), Kerry Tipper (Lakewood), Alex Valdez (Denver), Tonya Van Beber (Eaton), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), David Williams (Colorado Springs) and Dan Woog (Erie).

Senators Don Coram (Montrose), Bob Gardner (Colorado Springs), Joann Ginal (Fort Collins), Dennis Hisey (Colorado Springs), Chris Holbert (Douglas County), Barb Kirkmeyer (Brighton), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Kevin Priola (Henderson), Ray Scott (Grand Junction), Cleave Simpson (Alamosa), Jim Smallwood (Parker), Jerry Sonnenberg (Sterling), Rob Woodward (Loveland) and Rachel Zenzinger (Arvada).

Civil Justice Review of 2022 Colorado General Assembly

When the Colorado General Assembly adjourned on May 11, its record on civil justice was nothing to write home about.

For advocates of Common Sense in the Courtroom, this was no surprise given the expansions of liability handed to TV lawyers over the past four years.  But for Colorado’s business community, it was another round of “the beatings will continue until morale improves.”

To be sure, this year wasn’t a total loss.  Legislators did come together to restore sanity to our state’s premises liability law (SB 115), stopped an attempt to undermine employers’ ability to make workplace safety decisions (HB 1152), and put the brakes on an attempt to kill one of the few remaining protections against frivolous lawsuits (HB 1272).  CCJL members are grateful to legislators for those stands.

Unfortunately, legislators of both parties cast too many votes to expand liability and to transfer or entrust responsibility for enforcing our state’s laws to private contingency-fee lawyers (HBs 1071, 1119, 1253 and 1285, plus SBs 97 and 161).

Increasingly, lawmakers seem to believe that Colorado’s wonderful climate is they key to our economy and believe business can always be absorb one more burden.  One look at the steady decline of California should disabuse anyone of that notion. read more…

Want to encourage frivolous lawsuits? Pass HB 1272.

Not long ago, Colorado discouraged frivolous or speculative lawsuits. But such safeguards have been eroded. The penalty for filing a lawsuit that is frivolous, groundless or vexations (Section 13-17-101, C.R.S.) is so seldom invoked by judges that it’s essentially a dead letter.

Now comes House Bill 1272 (Reps. Gonzales-Gutierrez and Benavidez; Sens. Gonzales and Rodriguez) which would implicitly encourage frivolous lawsuits by ensuring that plaintiffs who file implausible claims are never responsible to pay the legal costs incurred by a defendant who is dragged into court on dubious grounds.

Civil litigation in our state is a field increasingly tilted to favor plaintiffs. Numerous bills passed over the past three years have required losing defendants to pay attorney fees and costs to winning plaintiffs – even if the defendant had a strong case and loses on a close call.

HB 1272 shafts the defendant again by taking away the ability to recover attorney fees and costs even when the plaintiff’s claims are so flimsy or baseless they cannot survive a motion to dismiss.

Consider that for a defendant to win a motion to dismiss, the court must assume that ALL of the plaintiff’s claims are true and must construe all other assumptions in the plaintiff’s favor. If a plaintiff’s claims aren’t plausible even when assumed to be true, then these claims are, in fact, frivolous.

HB 1272 would entirely repeal Section 13-72-201, C.R.S., which is an important tool. It encourages counsel for both parties to confer to consider an early, efficient, inexpensive resolution which is good for an injured party. Also, the statute encourages plaintiffs counsel to have a hard conversation with a potential plaintiff when it is obvious that the case simply lacks merit and is destined to fail – i.e., that it is a waste of time.

Finally, keep in mind that a motion to dismiss occurs early in the legal process – before an attorney’s billable hours are greatly enlarged by time-consuming discovery. So, a losing plaintiff won’t be on the hook for monstrous legal bills.

If it is ever just to require the plaintiff to reimburse the defendant’s legal bills, it is precisely when a plaintiff’s claims are so meritless that they cannot survive a motion to dismiss.

Passing HB 1272 will invite plaintiffs and TV lawyers to file baseless lawsuits knowing they can use the threat of running up legal fees as leverage to seek a quick settlement.