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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.

Legislators honored with ‘Common Sense’ awards for 2021

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.

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, this year’s Colorado General Assembly passed several bills that will increase the costs and risks of lawsuits: expanding liability for agricultural employers (Senate Bill 87), enabling medical lien companies to hide the amounts they pay to providers for medical care (House Bill 1300), and creating additional liability risks for employers when someone is injured by an employee’s negligence (House Bill 1188).

However, state legislators also defeated a bill that would have allowed contingency fee attorneys to bring class action lawsuits under the Colorado Consumer Protection Act and another to create the nation’s most draconian definition of a “hostile work environment.”

“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 Mark Baisley (Roxborough Park), Adrienne Benavidez (Commerce City), Shannon Bird (Westminster), Rod Bockenfeld (Watkins), Mary Bradfield (Colorado Springs), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Speaker Alec Garnett (Denver), Tim Geitner (Peyton), Ron Hanks (Penrose), Richard Holtorf (Akron), Colin Larson (Littleton), Stephanie Luck (Penrose), Mike Lynch (Wellington), Hugh McKean (Loveland), Rod Pelton (Cheyenne Wells), Andy Pico (Colorado Springs), Kim Ranson (Douglas County), Janice Rich (Grand Junction), Shane Sandridge (Colorado Springs), Marc Snyder (Manitou Springs), Matt Soper (Delta), Kerry Tipper (Lakewood), Donald Valdez (La Jara), Tonya Van Beber (Eaton), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), Dave Williams (Colorado Springs) and Dan Woog (Erie).

Senators John Cooke (Greeley), Rhonda Fields (Aurora), Bob Gardner (Colorado Springs), Chris Hansen (Denver), Dennis Hisey (Fountain), Chris Holbert (Parker), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Kevin Priola (Brighton), Bob Rankin (Snowmass Village), Ray Scott (Grand Junction), Cleave Simpson (Alamosa), Jerry Sonnenberg (Sterling) and Rob Woodward (Loveland).

This year’s awards presentation 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 to honor ‘Common Sense’ legislators at Oct. 28 event

Colorado Civil Justice League will recognize leading state legislators on Thursday, Oct. 28 during its annual Legislative Awards Luncheon at the Denver Four Seasons.  CCJL’s Common Sense In The Courtroom Awards are given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse and protecting working families from the cost of frivolous litigation.

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. read more…

‘It could have been worse’ is no consolation to Colorado job creators

By Mark Hillman

When the Colorado General Assembly adjourned on June 8, small-business owners and job creators breathed a collective sigh of relief.

After suffering through COVID-related restrictions and closures for most of the previous 12 months, employers were hopeful that legislators would join in their efforts to help get the economy back on its feet.

Maybe legislators in another state, but not in Colorado in 2021.

Instead, when our neighborhood businesses were trying to reboot, they found themselves in the crosshairs of more than a dozen bills aimed at creating new opportunities for lawsuits or removing safeguards designed to protect against inflated claims.

This year, the legislature’s unstated but unmistakable message to business was, “Beatings will continue until morale improves.”

Six of the seven states that border Colorado have acted to protect their business owners from dubious COVID-related lawsuits.  Nationwide, 33 states have enacted such laws, and Democratic governors in Kentucky, Louisiana, Michigan, Nevada, North Carolina, and Wisconsin proudly signed them.

Colorado legislators introduced two similar bills.  Like many proposals, these efforts needed revisions to effectively accomplish their objective, but they were tailored to offer businesses the same protections state law already affords governments.  However, unlike many bills that were given time for improvements, both of these bills were snuffed out in their first committee hearing.

Meanwhile, lawmakers introduced a litany of legislation creating new opportunities for litigation against businesses.

House Bill 1188 overturned a decision by the Colorado Supreme Court in Ferrer v. Colorado Cab.  The court ruled that, once an employer has acknowledged its own liability for the injurious actions of an employee, additional claims against the employer for the same injury are “duplicative and unnecessary.”

Now that HB 1188 has been signed into law, plaintiffs’ attorneys will use it to inflate damage claims by picking apart, with 20/20 hindsight, everything an employer “should have done” better to train an employee.

Consider a 2014 case in which a fan attending a Kansas City Royals baseball game was struck in the eye by a hotdog thrown by the team mascot.  The fan suffered a detached retina.  Of course, the fan filed a claim for damages for his medical treatment, but he also sought additional damages by claiming the Royals had failed to train their mascot on how to “safely” throw hotdogs.  Expect similar claims in Colorado.

Senate Bill 87 creates opportunities for employees of farmers and ranchers to sue their employers by, among other things, creating a legal presumption against the farmer or rancher.  If the farmer or rancher cannot overcome the presumption that they unfairly retaliated against an employee, they face a minimum penalty of $10,000 per violation and must pay the employee’s attorney fees.  Ironically, there’s no corresponding requirement for an employee who files a losing lawsuit to pay the employer’s attorney fees.

The unintended consequence of SB 87 will be that once a few farmers or ranchers suffer the cost of trying to defend against these lawsuits, word will spread that it’s better to replace employees with automated equipment whenever possible to avoid the risk of litigation.

Proponents were warned about this result, but they rejected less adversarial solutions in favor of more lawsuits.

Fortunately, lawmakers defeated several other bills that threatened still more litigation either against employers in general or against specific industries.  But in most cases, sponsors of those defeated bills vowed to re-introduce them next year to fight for still more lawsuits against Colorado’s job creators.

Actually, there is one business that was treated exceptionally well this year at the State Capitol: plaintiffs’ lawyers.

Consumers and employers alike will pay a price for that for years to come.

 

Mark Hillman, a former Senate Majority Leader and State Treasurer, is executive director of Colorado Civil Justice League.

Colo. Supreme Court to decide if state’s release of public records should now be confidential

The Colorado Supreme Court next week will consider whether a Denver judge was correct when he declined to bar confidential documents from being used in a lawsuit after the state had previously released them publicly through an open records request.

“Plaintiffs have already refused the Attorney General’s demand that they stop using and destroy the privileged documents,” argued Porter Adventist Hospital located in Denver to the court. “[N]o Colorado court has previously considered a situation like this.”

– Colorado Politics

CCJL announces Common Sense in the Courtroom Award winners for 2020

DENVER — Colorado Civil Justice League has 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 working families from the cost of frivolous litigation.

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.

Although legislators passed several bills in 2020 that will increase the costs and risks associated with lawsuits, they also served notice that they won’t automatically support every legislative whim that will expand unnecessary litigation.

“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 economy,” Hillman said.

Common Sense in the Courtroom Award recipients include:

  • Representatives Mark Baisley (Roxborough Park), Perry Buck (Greeley), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Richard Champion (Columbine Valley), Tim Geitner (Peyton), Richard Holtorf (Akron), Steve Humphrey (Severance), Tracy Kraft-Tharp (Arvada), Lois Landgraf (Colorado Springs), Colin Larson (Littleton), Larry Liston (Colorado Springs), Hugh McKean (Loveland), Patrick Neville (Franktown), Rod Pelton (Cheyenne Wells), Kim Ransom (Douglas County), Janice Rich (Grand Junction), Shane Sandridge (Colorado Springs), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), Dave Williams (Colorado Springs), and Jim Wilson (Salida).
  • Senators John Cooke (Greeley), Don Coram (Montrose), Larry Crowder (Alamosa), Bob Gardner (Colorado Springs), Chris Hansen (Denver), Owen Hill (Colorado Springs), Dennis Hisey (Fountain), Chris Holbert (Parker), Paul Lundeen (Monument), Vickie Marble (Fort Collins), Brittany Pettersen (Lakewood), Kevin Priola (Brighton), Bob Rankin (Snowmass Village), Ray Scott (Grand Junction), Jim Smallwood (Parker), Jerry Sonnenberg (Sterling), Jack Tate (Centennial), Angela Williams (Denver), Rob Woodward (Loveland), and Rachel Zenzinger (Arvada).

In addition, Attorney General Phil Weiser was named a Common Sense Award-winner for his work to find a balance that protects consumers from deceptive practices and protects honest businesses from speculative lawsuits.

Recipients are typically honored at CCJL’s annual Legislative Awards Luncheon.  However, this year’s event has been cancelled due to the COVID pandemic and corresponding restrictions on public gatherings.

CCJL announces Common Sense legislator awards

DENVER — Colorado Civil Justice League has 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 working families from the cost of frivolous litigation.

Awards will be presented at CCJL’s Legislative Awards Luncheon on Friday, Oct. 11, at the Denver Four Seasons.  Tickets are available at www.CCJL.org.

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.

Although legislators passed several bills in 2019 that will increase the costs of risks of lawsuits, they also served notice that they won’t automatically support every legislative whim that will expand unnecessary litigation.

“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 economy,” Hillman said.

Common Sense in the Courtroom Award recipients include:

• Representatives Jeni Arndt (Fort Collins), Mark Baisley (Roxborough Park), Susan Beckman (Littleton), Adrienne Benavidez (Denver), Shannon Bird (Westminster), Bri Buentello (Pueblo), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Alec Garnett (Denver), Tim Geitner (Falcon), Matt Gray (Broomfield), Chris Hansen (Denver), Leslie Herod (Denver), Edie Hooton (Boulder), Steve Humphrey (Severance), Tracy Kraft-Tharp (Arvada), Lois Landgraf (Colorado Springs), Colin Larson (Littleton), Kimmi Lewis (Kim), Larry Liston (Colorado Springs), Hugh McKean (Loveland), Patrick Neville (Franktown), Rod Pelton (Cheyenne Wells), Kim Ransom (Douglas County), Janice Rich (Grand Junction), Lori Saine (Firestone), Shane Sandridge (Colorado Springs), Matt Soper (Delta), Kerry Tipper (Lakewood), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), Dave Williams (Colorado Springs) and Jim Wilson (Salida).

• Senators Jeff Bridges (Greenwood Village), John Cooke (Greeley), Don Coram (Montrose), Larry Crowder (Alamosa), Bob Gardner (Colorado Springs), Owen Hill (Colorado Springs), Dennis Hisey (Fountain), Chris Holbert (Parker), Paul Lundeen (Monument), Vickie Marble (Fort Collins), Brittany Pettersen (Lakewood), Kevin Priola (Brighton), Bob Rankin (Snowmass Village), Ray Scott (Grand Junction), Jim Smallwood (Parker), Jerry Sonnenberg (Sterling), Nancy Todd (Aurora), Rob Woodward (Loveland) and Rachel Zenzinger (Arvada).

This year’s luncheon is sponsored by COPIC, Wheeler Trigg O’Donnell, Colorado Hospital Association, State Farm, HuschBlackwell, Colorado Association of Mechanical and Plumbing Contractors, American Furniture Warehouse.

Lawmakers selective on litigation in 2019 session

Although legislators passed several bills that will increase the costs and risks of lawsuits, they also served notice that they won’t automatically support every legislative whim that will expand unnecessary litigation.

Even before the General Assembly convened in January, the stability of Colorado’s lawsuit climate was at a perilous point, ranked 35th among the 50 states – an all-time low.  Other national groups worried about the growing unpredictability of our courts.

Numerous bills sought to create new opportunities for lawsuits, but many of those were subsequently modified.  A few others failed when legislative support withered.

Consequently, Colorado Civil Justice League grades the legislature at a “C” for its 2019 session.

read more…

Equal pay shouldn’t treat employers like the enemy

Equal pay for equal work isn’t just a laudable goal. It’s basic fairness, so Colorado law can certainly require it of employers.

On the other hand, Senate Bill 85, as originally introduced by Sen. Jessie Danielson, D-Wheat Ridge, and Brittany Pettersen, D-Lakewood, didn’t focus on basic fairness. Instead, it contained rigid rules and “gotcha” litigation traps that doom Colorado employers to failure, then punish them with costly lawsuits for violations that have nothing to do with discrimination.

For example, each of the following would have constituted unlawful discrimination under the introduced bill:

  • •A male hotel clerk in Aspen is paid more than a female hotel clerk in Akron – not because one is male and the other female, but due to differences in the cost-of-living.
  • •A female nurse is paid more to work the graveyard shift than a male nurse who works days. That’s because one is paid more to work undesirable hours.
  • •A company has a hard time recruiting employees to work in remote parts of the state, so they pay a male sales representative more to work in Springfield than a female doing the same job in Greeley. Employers sometimes pay more for hard-to-fill positions.

These are all legitimate reasons for paying different salaries and have nothing to do with whether the employee is male or female.

At the bill’s first hearing in Senate Judiciary Committee, some practical concerns raised by Colorado employers were addressed. For example, amendments to the bill clarified that liquidated damages could not be imposed if an employer acts in good faith. Also, pay differentials based on geography would be allowed. But much work remains.

Senate Bill 85 still allows an employee to bring a lawsuit without ever filing a formal complaint with a neutral party, such as the Department of Labor (which typically handles wage disputes) or the Civil Rights Commission (which hears claims of unlawful discrimination).

read more…