Colorado Litigation Report
Take a look at the Colorado Litigation Report, a site with very useful, short summaries of Colorado appellate opinions (best of all, published on a very regular basis, unlike this blog of late...  but soon to change).

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The Nature of the (Law) Firm
John Robb has a thought provoking comment on Ronald Coase's classic paper The Nature of the Firm.  Robb points out:

Coase asked the question:  if markets are extremely efficient (as maintained by many), why isn't everything built/done using contract labor?  

The reason he found is that when trying to get something complex done, market prices don't capture many of the costs involved.  

For example:  It costs money/time to find the right people, to negotiate for their labor, to find/acquire the right investors, to establish the right processes, to set up the organizational control systems, etc  In short, because it's expensive to do this, entrepreneurs typically create a company so that they only have to go through this process once.

Is this still true today?

Robb thinks this no longer necessarily holds true today, thanks to largely online, open-source markets that can dramatically increase the efficiency of building what I've been calling "ad hoc firms."

This trend and potential also applies to law firms.  Traditionally--and lawyers generally not known for their innovation in terms of their own business structures--law firms are classical "firms" precisely for the reasons highlighted by Coase:  there is substantial cost involved in assembling the right team to optimally serve a client.  That inefficiency, however, is melting away for those prepared to capitalize on the potential of new marketplace formats for labor and services.

Just as Coase pointed out, if there were no costs involved in assembling the right team, then all legal services would be delivered by tailored and just-in-time assemblages, or "ad hoc firms."  In fact, if there were no costs involved in creating such assemblages, it's quite clear that ad hoc firms could deliver superior knowledge, talent, service and value than traditional firm models.  I'm not sure whether we've already crossed the threshold where the value derived outweighs the cost of the ad hoc firm model, the obvious desire of traditional firms to keep their heads firmly planted in the sand notwithstanding.  What I am confident in is that we're rapidly moving in that direction, and that both legal service providers and consumers need to position themselves for the day when that line is undeniably crossed.  And, because of the widespread reticence to even acknowledge this dynamic let alone do something about it, there is tremendous potential for those individuals positioning themselves for that future today.

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Motions to Dismiss
This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is an overview of filing motions to dismiss in Colorado and Federal courts--where the governing rules and procedures are similar, these checklists will focus on motions in Colorado state court and will not significant differences for filings in Federal court.  As each of the following checklists are completed, I will link to them from the text below.
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C.R.C.P. 12(b) provides the legal basis for motions to dismiss.  A motion to dismiss may be filed for several reasons, and against several types of claims--each with their own checklist below.
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Motion to Dismiss Checklists
- Rule 12(b)(1) - Motion to Dismiss for Lack of Subject Matter Jurisdiction
- Rule 12(b)(2) - Motion to Dismiss for Lack of Personal Jurisdiction
- Rule 12(b)(3) & (4) - Motion to Dismiss due to Insufficiency of Process or Insufficiency of Service
- Rule 12(b)(5) - Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
- Rule 12(b)(6) - Motion to Dismiss for Failure to Join a Party Under Rule 19
- Special Considerations:  Motion to Dismiss Counterclaim or Crossclaim
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Other Related Motions:
- Rule 12(e) Motion for More Definite Statement
- Rule 12(f) Motion to Strike
- Motion for Judgment on the Pleadings



- In Colorado, if a motion to dismiss is granted that dismisses the entirety of an action brought by one party containing claims in tort, then an award of attorneys' fees is mandatory pursuant to C.R.S. § 13-17-201.  An award of attorneys fees is mandatory whenever all claims by one part against another are dismissed, even if other claims remain unresolved.  See Stauffer v. Stegemann, 165 P.3d 719 (Colo. App. 2006).
- Always consider the value of dismissing certain claims--for example, even if a complaint's lone tort claim is vulnerable to a motion to dismiss, is it more valuable to keep the claim alive for purposes of insurance coverage issues?
- In responding to a Motion to Dismiss, consider whether it is wiser to voluntarily dismiss the claims without prejudice to avoid a mandatory award of attorneys fees, fix the deficiencies in the complaint highlighted by the motion to dismiss, and refile.  Always consider statute of limitation issues and other potential bars to re-filing.
- While most courts will write their own order addressing a motion to dismiss, it is still wise to file a simple and direct proposed order with the motion (or response in opposition).
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

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The Future of the Legal Industry?
Jordan Furlong has an excellent take of the future of the legal industry in his latest post, The Law Firm of the Future:  Thompson Reuters.  I think his analysis will prove prescient for large and mid-size law firms over the coming decade.  Big firms that aren't on top of this trend (or small firms that try to emulate their business model) are in the process of pricing themselves out of the market.

More importantly, though, firms of ALL sizes simply can't ignore concepts like open-source development, flat networks, geoarbitrage, and process automation any longer.  In my mind, one of the most interesting and promising areas for change in the legal profession (and economy in general) will be the rise of ad hoc, networked providers of legal services--I won't call them "firms" because they meet neither the legal ethics nor classical economic of such.  In fact (perhaps this shows where my mind is, as I'm about to file a complaint along these lines), the most analogous legal structure is probably the RICO "enterprise-in-fact"--but I digress.

I've long found this area of thought fascinating.  Many people who know about the full range of my personal interests have often wondered how my interest in organizational theory, self-sufficiency, networked economies, consciousness/emergence theory, etc. will come together into my legal practice.  Here's my answer (which may also provide more insight into why I chose to start a solo litigation practice):  we have reached a bifurcation point in the legal profession, with one path diverging to large corporate structures--much like in modern accounting--that will "optimize" the human element (i.e. pay as little as possible for as much work as possible where labor is cheapest), and the other path diverging to well-connected individuals who can leverage personal attention, innovation, and access to the large legal/LPO/professional services corporations of the other path to deliver exceptional service to clients.  This second path is where I think humans (as opposed to stock markets) will find personal and professional fulfillment.  This second path is also far more adaptable to the rapidly changing and multifaceted end needs of the legal consumer.

This, I believe, will define the structure of the legal industry in the coming few decades:  agile, networked professionals--individuals capable of assembling into ad hoc firms, rather than firms composed of individuals--will leverage access to more rigid and powerful LPO structures to provide millions of tailored legal solutions to clients.  Contrast this with present-day "firms" that will gradually fade, some begin absorbed into the large, corporate LPO-structures (with commensurate decline in the fulfillment of their component individual attorneys), and others that will voluntarily dissolve into networks nimble enough to prosper.

What path will your firm/career take?  Or, if you're a client of legal services (and everyone is, they just often don't realize how important their consumption of legal services in one form or another is to their lives),  how much longer will you put up with the bloated, inefficient, and overpriced services offered by traditional firm structures?

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The Oil Drum
Sadly, one of my favorite websites (and a website where I was previously a contributing author), www.theoildrum.com, is shutting down (actually converting to an archive, there will just be no new content).  There are a variety of reasons for this, but in my opinion it doesn't reflect that energy has become any less central to questions about our civilization or its future.

A few articles I wrote for TOD in the past that are still worth considering (perhaps more so now than ever):

Oil Demand Destruction & Brittle Systems

Geopolitical Feedback Loops in Peak Oil

The Renewables Gap

Predator-Prey Dynamics in Demand Destruction and Oil Prices

Some weekend reading...

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Preserving ESI on Twitter

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Litigation Flowchart
I'm working on assembling a flowchart for civil business litigation in Colorado state and federal courts, which will eventually link to associated checklists.  This is not a definitive outline of the litigation process in all cases, but is general legal information that may be helpful in general litigation planning.  Here's the first draft:

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Learning Law: Solo v. Associate v. Contract Lawyer
At the end of the day, every lawyer (and every person, for that matter), is a "solo"--a brand of one, a serial entrepreneur, etc.  Whether we see ourselves expressly in these terms (as I and other true solo practitioners are forced to), or whether we shroud ourselves in the gloss of "employee," "associate," or "partner" is ultimately irrelevant.  In the global marketplace where "employees" are but one more cog in the system to be optimized, the disparity between this reality and the common desire to hide one's head in the sand of a large and established employer is especially striking.  In my opinion, nearly everyone would be well served to view themselves as the duality of one-person venture/consciously assembled network (21st century thinking) rather than the outdated employee/employer (or, for that matter, citizen/Nation-State, but that's the story for another essay).

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Mentorship, Leadership, Validation and the Ad Hoc Firm
The vision of the ad hoc law firm can be compelling:  agile assemblages of just the right talent, just in time, to efficiently meet a clients needs.  In this running commentary on the prospects for the ad hoc law firm (or any industry, really), I'd like to touch briefly on three topics:

1.  Mentorship:  As Richard Susskind points out, one of the roles for the "large" law firm is essentially that of a teaching hospital--a place where junior lawyers with only academic experience are put through the paces and given real world training.  How does the need for this kind of training meet with the needs of the ad hoc firm?  It seems to me that it's a huge opportunity:  to the extent more seasoned lawyers are willing and skilled at mentorship, they can offer this as part (or all) of the compensation of junior lawyers on their teams--and also offer the prospect of developing relationships that will lead to employment in future ad hoc assemblages.  Especially in today's job market, law students are scrambling for choice unpaid internships, and increasingly licensed attorneys are doing the same.  Even senior attorneys might jump for the training opportunity of a high profile case (i.e. appeal to the US Supreme Court).  While at first the need for training, development and advancement may seem like a challenge to the ad hoc firm model, I think it should instead be seen as an opportunity--albeit not one that is currently embraced by the law school placement office or "accepted" career path expectations of most graduates.

2.  Leadership/Project Management:  Similarly, project management and leadership is a key part of ad hoc law firm operations.  Of course, this is very true of litigation or deals in monolithic firms as well, though it's often not recognized as such and very rarely trained or adequately staffed.  In the transactional world it's quite common to hear of "quarterbacking the deal," and litigation management is increasingly an appreciated talent, but these are usually afterthoughts when it comes to attorney training (both in law school and in professional development).  Should project management be outsourced to PM specialists?  Or attorneys with additional specialized training?  Where is the "break even" point when considering how much attention to pay to project management on small cases, or whether to have a PM specialist?  What about classical leadership training--something I've always valued most about my experience as a military officer where I was in charge of nearly 30 people at age 22.  Lawyers rarely have much experience as leaders, let alone any formal training in leadership, yet it is clearly an important skill in even moderately complex litigation, and will become even more important as the potential of the ad hoc law firm process is increasingly realized.

3.  Validation/Metrics:  Jonathan Soroko's insightful comment in my last entry highlights the importance of knowing what you're getting when putting together ad hoc talent.  In many cases we can do this based on past experience working with people--but that ignores the initial hurdle in setting up such an ad hoc system, as well as the ongoing inefficiency of evaluating potential new talent.  What kind of validation system or metric for performance, potential, and value should be used when assembling a team?  Some initial thoughts are the Ebay buyer/seller rating system, or some kind of review-based metric (one example, though certainly imperfect, is the AVVO lawyer rating system).  John Robb has also been posting very interesting thoughts on "meta currencies"--social networking valuation algorithms that can compute the value of input to the social network from all contributors--another potential.  While I'd prefer such systems to be transparent, I can also envision the potential market for proprietary rating systems--possibly even that facilitate the assemblage of an ad hoc firm, and/or stand behind the performance of their members based on their ratings...

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Corporate Disclosure Statement per F.R.C.P. 7.1
This post on drafting the Corporate Disclosure Statement required by F.R.C.P. 7.1 is part of my Federal Litigation Checklist.
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Checklist:
- F.R.C.P. 7.1 requires the filing of a disclosure statement by all nongovernmental corporate parties
- The filing requirement is simple:
  -- Identify any parent corporation
  -- Identify any publicly held corporation owning 10% or more of the party's stock
  -- Or, if no such parent or corporation holding 10% or more exists, say so
- The disclosure statement must be filed at the time of the first appearance or filing by the party, and must be updated "promptly" if any of the disclosed information changes
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Thoughts & Best Practices:
- While the corporate disclosure statement may seem like a trivial administrative filing, it can have important ramifications.  For example, the failure to file a corporate disclosure statement may permit a parent company that should have been disclosed to be added after the deadline for adding parties.
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Sample Corporate Disclosure Statement
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing a Corporate Disclosure Statement as required by F.R.C.P. 7.1 is part of my Federal Litigation Checklist approach to litigation knowledge management and litigation strategy.

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Federal Litigation Checklist
This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is an overview of procedural issues and motions in Federal Court civil lawsuits.  Where possible, the following procedures and checklists apply rules and case law applicable in the United States District Court for the District of Colorado.  As each of the following checklists are completed, I will link to them from the text below.
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- Complaint, Summons & Cover Sheet
 -- Pleading Jurisdiction
 -- Pleading Venue
 -- Twombly Standard
- Corporate Disclosure Statement
- Entry of Appearance
- Answer
- Motion to Intervene
- Motions to Dismiss
- Motion to Compel Arbitration
- Motion for Rule 11 Sanctions
- Motion for Protective Order to Stay Discovery
- Motion for Protective Order (General)
- Case Management Order
- Discovery Requests
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

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Domestication of Foreign Judgments in Colorado
This Checklist on the domestication of foreign judgments is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  When you have obtained a judgment from outside of Colorado against a Colorado resident, you must domesticate the judgment in Colorado before you can proceed to execute on the judgment (attempt to collect).  Fortunately, in Colorado the domestication process is relatively simple:
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Checklist:
- In Colorado, the domestication of foreign judgments is governed by the Uniform Enforcement of Foreign Judgments Act, C.R.S. Section 13-53-101 et seq.
- The court filing fee is $166 per judgment to be domesticated (note:  a single judgment against multiple judgment debtors, jointly and severally, counts as only one judgment)
- Draft a pleading styled Notice of Filing of Foreign Judgment
- Include as an attachment an authenticated copy of the foreign judgment
- Include as an attachment an affidavit including (1) the name and last-known postal address of the judgment debtor(s); (2) the current postal address of the judgment creditor; and (3) the name and current address of the judgment creditor's Colorado attorney
- The clerk of the court should send notice of this filing to each of the judgment debtors listed, however this notice requirement can also be met by filing proof of mailing, by certified mail, notice of the filing and the judgment to judgment debtors
- 10 days after the filing of the judgment (not receipt of the notice by the judgment debtors), efforts to collect or execute on the judgment in Colorado courts may commence
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

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Complaint
This Complaint Checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  A Complaint is used to initiate a lawsuit.  Before filing, an attorney should consider at a minimum the following:
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Checklist:
- Pre-Complaint Investigation
- Review potential claims and their elements
- Ensure there is factual support, or a good faith belief that you will obtain factual support, for each element of each claim
- Ensure that a federal court Complaint meets the standard set forth in Twombly
- Even if the complaint will be filed in state court, there are reasons to still ensure it meets the Twombly pleading requirements
- Special considerations for complaints against multiple defendants
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This Complaint Checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

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E-Discovery White Paper
Our new E-Discovery white paper is available now:  E-Discovery White Paper

Entitled "Avoiding E-Discovery Nightmares:  Simple Steps for Small Businesses," this paper discusses key steps small businesses should consider to prepare for the eventuality of electronic discovery in litigation.

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Colorado State E-Discovery Law

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Affirmative Defenses (Litigation Checklist)
This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended to assist in identifying appropriate affirmative or additional defenses for inclusion in an answer. To my knowledge, this is the most complete list of affirmative defenses available, currently consisting of 149 separate affirmative defenses.  This list is updated continuously, but certainly isn't complete--if you have a suggested addition, please contact me or comment below.
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C.R.C.P. 8(c) requires a party to "set forth affirmatively . . . [any] matter constituting an avoidance or affirmative defense."
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Checklist & Best Practices to Consider:
- Consider each of the below affirmative defenses--does it potentially apply in your case?  Rule 8(c) requires that both defenses to liability and defenses that potentially mitigate damages must be set forth in the pleadings.  Indus. Comm'n v. Ewing, 418 P.2d 296 (Colo. 1966).
- If a defense is not raised by the pleadings, it may still be tried by the express or implied consent of the parties.  See C.R.C.P. 15(b); Great Am. Ins. Co. v. Ferndale Dev. Co., 523 P.2d 979 (Colo. 1974).  However, it is error for a trial court to consider a defense first presented at trial if it is objected to.  Maxey v. Jefferson County Sch. Dist. No. R-1, 408 P.2d 970 (Colo. 1965).  Accordingly, while pleadings may be amended to add additional affirmative defenses, it is essential that all defenses to be raised at trial are pleaded before trial, and that any attempt to raise defenses not pleaded is objected to.
- Note that, unlike affirmative defenses where the defendant bears the burden of proving the defense, some of the following are more properly styled "additional defenses" where the plaintiff bears the burden of proving that the defense does not apply (e.g. service of process).
- While the vast majority of these defenses will not apply in any given case, review of the complete list may be an especially helpful tool in brainstorming at the outset of a case.
***DO NOT PLEAD A LAUNDRY LIST.  As stated above, the vast majority of these affirmative defenses will not apply to any given case--they are intended as a brainstorming tool, and certainly should not be included in full.  Rule 11 requires that you have a good faith basis for believing an affirmative defense actually applies before pleading it, and in discovery you will likely need to respond to an interrogatory identifying all factual bases for every affirmative defense you plead.
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List of Affirmative Defenses (Partial):
- failure to state a claim upon which relief may be granted (almost always use)
- statutory defenses prerequisites (these will vary depending on the claims)
- preemption by federal or other law
- accord and satisfaction
- arbitration and award
- assumption of risk
- economic loss rule
- contributory or comparative negligence
- intervening cause
- supervening cause
- claimants own conduct, or by the conduct of its agents, representatives, and consultants
- discharge in bankruptcy
- duress
- estoppel
- recoupment
- cardinal change
- set off
- failure of consideration
- fraud (generally, as an equitable defense, as opposed to fraud in the inducement, below)
- fraud in the inducement
- illegality
- injury by fellow servant
- borrowed servant
- laches
- license
- payment
- release
- res judicata
- statute of frauds
- statute of limitations
- waiver
- unclean hands
- no adequate remedy at law
- failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
- rejection of goods
- revocation of acceptance of goods
- conditions precedent
- discharge
- failing to plead fraud with particularity
- no reliance
- attorneys’ fees award not permissible
- punitive damages not permissible
- lack of standing
- sole negligence of co-defendant
- offset
- collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
- improper service
- failure to serve
- indemnity
- lack of consent
- mistake
- undue influence
- unconscionability
- adhesion
- contrary to public policy
- restraint of trade
- novation
- ratification
- alteration of product
- misuse of product
- charitable immunity
- misnomer of parties
- failure to exhaust administrative remedies
- frustration of purpose
- impossibility
- preemption
- prior pending action
- improper venue
- failure to join an indispensable party
- no private right of action
- justification
- necessity
- execution of public duty
- breach by plaintiff
- failure of condition precedent
- anticipatory repudiation
- improper notice of breach
- breach of express warranty
- breach of implied warranty
- parol evidence rule
- unjust enrichment
- prevention of performance
- lack of privity
- merger doctrine
- learned intermediary or sophisticated user doctrine
- adequate warning
- no evidence that modified warning would have been followed or would have prevented injury
- manufacturing/labeling/marketing in conformity with the state of the art at the time
- release
- res judicata
- assumption of the risk
- product was unavoidably unsafe
- product provides net benefits for a class of patients
- spoliation
- damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant's conduct
- lack of causal relationship
- act of god (or peril of the sea in admiralty cases)
- force majeure
- usury
- failure to act in a commercially reasonable manner
- acquiescence
- doctrine of primary or exclusive jurisdiction
- exemption
- failure to preserve confidentiality (in a privacy action)
- filed rate doctrine
- good faith
- prior pending action
- sovereign immunity
- truth (in defamation actions)
- suicide (in accident or some benefits actions)
- adverse possession (in trespass action)
- mutual acquiescence in boundary (in trespass action)
- statutory immunity (under applicable state or federal law)
- unconstitutional (relating to statute allegedly violated)
- insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
- self-defense (in assault, battery, trespass actions)
- permission/invitation (in assault, battery, trespass actions)
- agency
- Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
- at-will employment
- breach of contract
- hindrance of contract
- cancellation of contract/resignation
- circuitry of action
- discharge (other than bankruptcy)
- election of parties
- election of remedies
- joint venture
- lack of authority
- mutual mistake
- no government action
- privilege
- reasonable accommodation
- retraction
- safety of employee (ADA)
- statutory compliance
- no damages (where required element of pleading)
- termination of employement
- undue burden (ADA)
- wrong party
- Noerr-Pennington defense (antitrust) (a Sherman Act defendant can raise the affirmative defense of right to petition for redress, even if they use that right to try to gain an anti-competitive advantage).  See Noerr-Pennington Doctrine (2009), ABA Section of Antitrust Law, at p.107.  (hat tip Bill Shea)
- Same decision defense (employer would still have fired employee for lawful reasons even if the actual firing was for a mix of lawful and unlawful reasons) (Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)) (hat tip Bill Shea)
- ignorance of the law.  Ignorance of the law is rarely a defense to liability, but if proven, ignorance that racial discrimination violates federal law may be a defense to punitive damages in Title VII cases.  See, e.g. Alexander v. Riga, 208 F.3d 419, 432 (3d Cir. 2000) (hat tip Bill Shea)
- business judgment rule (hat tip Iain Johnston)
- claim of right (defense to element of intent required to prove theft)
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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

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