Twombly Pleading Standard in Colorado State Court

Does the revised pleading standard set forth by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), apply to pleadings in Colorado state courts?  This is a particularly important question as adoption of the Twombly standard could substantially alter the terrain for motions to dismiss in Colorado...

The short answer is that Twombly has not been adopted by Colorado state courts--at least not at the appellate level, yet.  As of April, 2011, only one Colorado state appellate court opinion has cited the recent US Supreme Court opinion in Bell Atlantic Corp. v. Twombly, and that case is Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo. App. 2008).  Sonitrol is anything but an endorsement of Twombly--it is a “but see” cite included as contrast to the quotation of the Colorado pleading standard of complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove facts in support of a claim that would entitle it to relief. Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo. 1999).  (Note that Sonitrol was decided before Iqbal, in which the Supreme Court expressly extended the Twombly standard to all federal complaints).

Ultimately, Sonitrol neither adopted nor rejected Twombly.  Accordingly, it is uncertain whether Colorado will eventually adopt Twombly.  In my opinion, however, it is likely that Colorado will eventually expressly adopt Twombly (or some similar standard).  A growing body of case law is developing at the federal level applying Twombly, and the kinks are being gradually worked out.  Most importantly, there are several persuasive arguments in favor of the Twombly standard, especially in light of the courts' backlog, the skeptical view toward frivolous litigation, and the general atmosphere of tort reform.

Already, at the trial court level, Twombly is being used with some success--I have personally referred to Twombly as persuasive authority to support a motion to dismiss, and the motion was granted.  While it is certainly not binding precedent at this point, I think courts are both persuaded by the reasoning behind Twombly and its progeny and are concerned that Colorado appellate courts could adopt some version of Twombly at any time.  Accordingly, where possible, courts will look to build a "double hull" into their rulings on motions to dismiss to ensure that they are appropriate under either standard.  For the careful practitioner--on both Defense and Plaintiffs' side--it is important to understand and apply this tension when briefing a motion to dismiss.

Finally, when drafting a complaint in Colorado state court, it is certainly wise to consider Twombly if there is any possibility that the case will be removed to federal court,

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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on http://www.twitter.com/jeffreyvail.

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 Colorado business litigation attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on http://www.twitter.com/jeffreyvail.
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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.

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 Colorado business litigation attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on Twitter @jeffreyvail.

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

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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If you have a judgment to domesticate in Colorado, contact Jeff Vail at The Law Office of Jeff Vail LLC.  Our checklist-driven approach improves efficiency and allows domestication of judgments for a very reasonable fixed-fee, inclusive of filing fees and expenses.
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This Complaint Checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

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 Colorado business litigation attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on http://www.twitter.com/jeffreyvail.
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This Complaint Checklist is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

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).

Of course, when it comes to law, or any other profession that deals with such complexity, the reality of "venture of one" runs into the need for training, skill building, mentorship, etc.  Richard Susskind has argued that this is one of the remaining sources of legitimacy for traditional, large law firms--they act as a sort of "teaching hospital," taking young attorneys under their wing and gradually training them in the art and science of the law.  Another traditional approach is for junior attorneys to start off working as a public defender or district attorney, and then after they have a fair amount of trial experience under their belt they re-start in civil litigation (never mind the enormous substantive and procedural differences between the two fields--akin to the transition between surgery and psychiatry, or vice versa).

At the opposite end of the spectrum, there's always the option of being a "venture of one" in the form of a contract lawyer for large firms.  In most (though, admittedly, not all) cases, this is a dead end street--

document review or repetitive drafting that employs licensed attorneys normally for no reason other than to be able to check the box of some practice of law or insurance requirement.  This route tends to be devoid of mentorship or real learning, and the experience gained is rarely of much real value.  (Of course, there are other arrangements, often also labeled "contract attorney," that involve much more substantive research, drafting, or advocacy, which are true independent contractor relationships rather than "temporary hire" type positions--labels can be dangerous).

Fortunately, I think there is great potential for junior attorneys to structure themselves expressly as solo practitioners, yet still reap the advantages of training, mentorship and experience to be gained in a traditional large firm setting.  It's something I've written about frequently over the past few months:  the Ad Hoc Firm.  In a nutshell, every case should be a temporary assemblage of legal talent tailored specifically for the job at hand, and flexible to grow and contract as the legal task itself evolves.  In the litigation realm, that might include the Rainmaker (the person who brings in the client), the Coach (who assembles and manages the team--often called the quarterback transactional matters, though I think "coach" is the more fitting sports analogy), the Strategist (who lays out the grand plan), the Expert (the person or people with subject matter expertise required), and then various Lieutenants (who take charge of individual tasks, from the minor research project to larger issues like discovery or trial).  Of course, in all but the largest of matters one person will fill several, often all of these roles simultaneously.  However, I think it's still important to view them as separate functions--regardless of whether it's just one attorney or a team of dozens spanning several continents.

How does all of this relate to the training of junior lawyers?  Within the ad hoc firm, everyone is their own enterprise, and they have come together voluntarily to form a team to address a legal challenge.  For the junior lawyer, that can mean offering one's services as a "Lieutenant" in a discovery matter, in dealing with a specific substantive area of the law, sitting second chair at trial, etc.  The junior lawyer can also be the Coach or Rainmaker--what better way to pitch a client than to explain your intent to assemble a team of highly experienced attorneys, with a reasonably priced and highly motivated junior attorney taking up the often time-consuming task of coordination?  And, unlike in a large, monolithic law firm, the junior lawyer has flexibility in balancing income, education and experience.  I know many junior attorneys at large law firms that would love to be the second attorney in a civil trial, yet calcified firm business models often don't permit this as it would be impossible to bill for the attorney's time.  It's a Catch-22:  often you can't get the experience until you're experienced enough to justify billing for the work.  A junior solo attorney, on the other hand, has the opportunity to make a very attractive pitch:  essentially "let me try this case with you, and cross examine three witnesses, and I'll work for 1/3 my normal rate."

This isn't particularly revolutionary.  It's common advice for junior attorneys to be told to try to get some pro bono work to build experience, or to try to attract small clients of their own and gradually build to more sophisticated matters.  But this rarely does away with the Catch-22 caused by existing models of experience and billing.  Interestingly, law students seem to have no problem forking over $40k a year to be lectured on the law by professors, but few licensed attorneys seem to be willing to forgo even a fraction of that income for the chance to gain truly valuable experience.  This is where I think a paradigm shift is in order:  the more junior attorneys conceptualize themselves as one-person enterprises, regardless of whether someone else sees them as an employee, the more they will be in a position to demand (or create for themselves) the kind of experience they need and desire.

As a bit of an afterthought, it's also worth noting that clients will be increasingly unwilling to subsidize the highly inefficient training models of large law firms--especially the kind of sophisticated clients with sophisticated matters that attorneys hope to work on.  The very Catch-22 that prevents junior associates from getting the kind of experience they need (because clients don't want to pay inflated large firm billing rates for the associate to learn on the job) forces clients to pay for the high rates of more seasoned attorneys.  An ad hoc firm, however, that provides an appropriate mix of high-paid and seasoned attorneys with much lower paid apprentices will enjoy a significant competitive advantage when pitching work.

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...