A new program in the Denver District Court in collaboration with the American College of Trial Lawyers aims to make the court system more accessible for everyday litigants. Spurred by the court’s growing dockets, two attorneys have worked with Chief Judge Michael Martinez to figure out how the ACTL can use its attorneys’ expertise to aid in civil cases and then created a list of other ACTL fellows in Colorado willing to volunteer their time as mediators..
Jim Lyons, a representative of the American College of Trial Lawyers leading the effort and a partner at Lewis Roca Rothgerber Christie, said the idea for providing pro bono mediations in Denver came around last fall. He saw Colorado’s federal district court have success with a pro bono program intended to help settle claims brought by inmates and thought a similar program could also work in the Denver District Court for civil cases. Lyons has teamed up with Faegre Drinker Biddle & Reath partner Michael McCarthy in leading the program. McCarthy chairs Colorado’s ACTL committee.
Lyons said the effort lines up with ACTL’s mission to promote the court system’s accessibility.
“We all think that this is a way we can do that in a very meaningful and practical fashion,” he said.
McCarthy added Colorado’s “explosion” of cases with self-represented parties, especially in Denver, and the court’s heavy docket loads have driven the need for the mediation project.
“Jim was really the driving force in terms of seeing the publicity about how jammed things were over in Denver District [Court], and then suggesting that the American College try do something about it,” McCarthy said.
While the genesis of the program predates the COVID-19 pandemic, they said the economic damage done by the crisis has given rise to more cases that might be appropriate for mediation, such as disputes in employment, small business and real estate. Lyons said he would expect the demand for pro bono mediation to increase as Colorado’s courts begin returning to normal operations.
Martinez said he has a lot of respect for both Lyons and McCarthy, who have both had cases in front of him. He added that understaffing in the court has been a contributor to overloaded dockets, and the two attorneys have been eager to help ease the burden how they can. A 2019 state bill that added more than a dozen new district judge positions in Colorado’s courts, including four in Denver District Court, has also helped address docket loads.
“Jim and Mike and I spent quite a while at varying days and times just kicking the can around. What would it look like? What types of things can we do to have a meaningful impact on the caseload and our ability to serve the public?,” Martinez said. He added pro bono mediation especially makes a difference for disputes in which litigants don’t have attorneys because the cases often have a lot of significance to the parties but may not involve enough money for hiring a lawyer to make economic sense.
“Usually it’s six figures; a $100,000 dispute, which you would think is a lot of money,” Martinez said. “But oftentimes when you involve lawyers and you have to pay them to assist you in cases like that, the legal fees add up real quickly, and then you’re having to make difficult choices about how much you want to spend to get back the amount [that’s] in dispute.”
Lyons and McCarthy put together a list of attorneys willing to do mediations pro bono for the Denver District Court’s judges to contact by reaching out to Colorado’s small community of ACTL fellows. They said they didn’t have difficulty getting enough interest from the attorneys to start providing the services.
It’s ultimately up to a case’s assigned judge whether to ask the parties to go to mediation and contact an ACTL fellow to take it pro bono. Martinez said a variety of case characteristics might influence the judge’s decision, such as the parties’ financial need and the resources trial would take.
He said even in cases where one or both of the parties have attorneys, a mediator can help parties wade through complex disputes, possibly resolving the case and heading off the need to go to trial.
“We’re definitely looking at all of those things. Who are the parties involved; what’s the nature of the dispute? And what’s the approximate monetary value of the dispute?” Martinez said. “In the end, the parties have the right to litigate their dispute before this court, and so we want to make sure they’ve been given an opportunity to explore these other alternatives so that they don’t waste their time, and candidly, so that their time before the court is more efficient.”
The effort doesn’t currently include domestic relations cases, an area of law where up to three-quarters of parties don’t have representation, according to a previous interview Law Week conducted with Colorado’s state court administrator Steven Vasconcellos . The American College of Trial Lawyers doesn’t have a subsection of family law attorneys, but Martinez said he would consider expanding pro bono mediations to domestic cases if attorneys could be available through other means.
The pro bono effort currently includes about 20 ACTL fellows for mediations. Although the program is just in Denver District Court right now, Lyons and McCarthy said that doesn’t preclude the possibility of eventually expanding it to other courts in Colorado.
“If word gets out that it’s been working fairly well and we feel like we can responsibly handle the referrals that would come in to us for mediation, then I see no reason why we would necessarily need to confine it to Denver,” McCarthy said.
—Julia Cardi