During a pair of events earlier this month, one for young lawyers and one for appellate attorneys more broadly, several of Colorado’s judges and justices provided commentary on subjects ranging from professionalism and artificial intelligence to key developments within the judiciary.

Chief Justice Brian D. Boatright also disclosed he will swear in Justice Monica M. Márquez on July 26 as the next leader of the state’s judicial branch. The succession has been planned since 2020, when the Supreme Court adopted a new rotational system among its seven members for filling the chief justice seat.

Chief Judge Gilbert M. Román of the Court of Appeals further announced he had met with judicial branch leaders and formally requested the judiciary seek authorization from the legislature next year to expand the 22-member court by six judgeships. The request came in response to a recent study that found the Court of Appeals’ workload justified adding judges for the first time in 15 years.

“No decision’s been made on that, but that’s the hope,” Román said.

Ethics and professionalism

Speaking on a panel about how to advocate with professionalism, Justice Richard L. Gabriel warned that attorneys should avoid taking the bait if the opposing side is behaving unprofessionally.

“If your opponent got up and you think they misstated the record or the law, the way to respond to that, from principles of professionalism and ethics, is not to say, ‘My opponent is continuing his practice of misleading the court,'” Gabriel said. “You take the high road. The response might be, ‘My opponent indicated the witness testified X. The witness testimony is as follows, and I quote…’. That’s the right way.”

Judge Ted C. Tow III of the Court of Appeals added that, in his experience, family law cases more often lead to lawyers taking on the emotions of their client. He said judges try to assume lawyers are acting with the best intentions, but courts also take note of extreme behavior.

“Silence doesn’t mean they’re getting away with it,” he said. “I very recently had to drop a footnote that said the tone of the brief was inappropriate. And in particular, the lawyer had referred to the other side’s argument — the other side happened to be two female attorneys — he referred to their argument as ‘near hysterical.’ And that has serious sexist overtones.”

Márquez said she is sometimes relieved to see briefs authored by certain attorneys because they are historically trustworthy. On the opposite end, members of the Supreme Court are witnesses to boorish behavior in various forms.

“There has been conversation among us in the conference room, ‘Did you see that person roll their eyes or snort’ or whatever in response to an argument,” she said.

Tow acknowledged that in his court, he is stricter with extensions of time for lawyers who are in private practice versus those employed by the government. A private attorney who takes on too many cases and needs more time, he said, is not in the same position as a public defender or a prosecutor who has little control over their workload.

“Sorry for the different treatment but that’s the reality,” Tow said.

Oral argument

Justice William W. Hood III explained that members of the Supreme Court will frequently ask hypothetical questions because they are concerned about ruling in a way that minimizes unintended consequences for other cases. In those instances, lawyers should respond to the hypothetical, rather than answer simply, “That isn’t my case.”

He also drew a contrast to the Court of Appeals, where one of the judges hearing a given case has already authored a draft opinion proposing an outcome by the time of oral arguments.

“Maybe somewhat counterintuitively, you may have more of an opportunity to move the needle with us than with the Court of Appeals,” Hood said. “In most cases, I go in with a pretty strong sense of how I’m likely to rule. I think you have to. The decisions tend to be sufficiently complicated that you better have some logic path going in.”

Judge Jerry N. Jones of the Court of Appeals said lawyers’ goal during oral arguments should be to figure out what the judges are thinking. To that end, they should welcome questions and interruptions.

“When I was a practitioner,” he said, “if I didn’t get any questions it meant one of two things: I had a sure winner or I had a sure loser, and there’s no point.”

Judge Jaclyn Casey Brown, also of the Court of Appeals, added judges sometimes are in a dialogue with each other during oral arguments about how far to take a proposed decision. She suggested lawyers should try to address the points judges are struggling with or correct any misperceptions.

“Don’t hesitate to ask me to clarify (a question). If it doesn’t make any sense to you, you’re not gonna give me a great answer,” Brown said. 

Family law

Two Court of Appeals judges spoke about common pitfalls they see with family law cases, including trial judges making inadequate findings to support their decisions that require the appellate court to return the case for more analysis.

“Clients are in a really hard position when we reverse for lack of findings,” said Judge Katharine E. Lum, who practiced family law before her 2022 appointment.

“In defense of trial courts,” said Judge Timothy J. Schutz, who was previously a trial judge in El Paso County, “oftentimes they don’t have good information, either. Particularly when it’s pro se (self-represented) parties and they’re struggling with ‘how do I prove what husband or wife should have been making’.”

Retired Judge David J. Richman, in the audience, asked whether trial judges are supposed to perform additional analysis while taking account of a family’s changed circumstances while the appeal was pending, or if they are to simply redo their order with the original facts.

“This is kind of an open question in our court,” Richman added. “The likelihood, in a (parental rights) situation, is that something has changed. If nothing else, the child is 2.5 years older.”

Schutz also acknowledged that parties may have a difficult time understanding the rules for magistrates — judicial employees who are not judges but who handle aspects of cases in the trial courts. Misunderstanding when and how to challenge a magistrate’s order can affect the ability of parties to appeal.

“This is a quintessential illustration of when things are in this much uncertainty under the rules, it’s time to fix the rule,” Schutz said.

Artificial intelligence

U.S. Magistrate Judge Maritza Dominguez Braswell and Court of Appeals Judge Lino S. Lipinsky de Orlov, who are heavily involved with educating lawyers about developments in AI, said that attorneys should be aware of the pitfalls as well as the potential benefits of AI legal tools.

“I don’t think it’s taking over anyone’s jobs soon, but it will make jobs easier,” said Dominguez Braswell, who noted she asked an AI tool about an unsettled area of the law and it provided her a response “as if a young law clerk was looking at an issue.”

Lipinsky added that there is a subcommittee currently examining Colorado’s rules of professional conduct with an eye toward how to accommodate AI tools.

“We’ve gone through every single one of the rules, every rule of professional conduct, to decide which ones may need to be tweaked and which ones may need to be amended,” he said. “We will then bring our recommendations to the full standing committee, which will then go to the full Supreme Court.”

Attorney Jacob Hollars provided a demonstration with ChatGPT, asking it to summarize a federal judge’s decision and predict the most likely outcome on appeal. He also gave the tool the names of certain judges who would hear the appeal so the AI generator could give an informed answer. Instead, ChatGPT summarized vaguely what “may” or “possibly” happen on appeal.

“That’s not helpful,” said Hollars.

“Part of the issue,” elaborated Dominguez Braswell, “is knowing what tools should be used for what purpose.”

Statistics

Attorney Geoffrey C. Klingsporn provided his annual analysis of the Supreme Court’s caseload using statistics published by the judicial branch and from his own research. Once a case is argued before the court, a decision comes roughly 120 days later, on average. The delay between argument and decision has lessened over the past decade, Klingsporn noted.

The shortest window in the last year was only 13 days in Anderson v. Griswold, the case that found Donald Trump was constitutionally disqualified from appearing on Colorado’s presidential primary ballot. The U.S. Supreme Court later reversed that decision.

Although divided opinions are less common than unanimous rulings, Klingsporn found Justice Melissa Hart was most frequently in the majority in split decisions. Boatright and Márquez were most freqently in dissent in such cases.

The 2024 appellate practice update was sponsored by the Colorado Bar Association’s continuing legal education arm.