The Black Lives Matter and #MeToo movements have put police brutality and sexual assault in the spotlight and led to new demands when it comes to criminal justice reforms, victims’ rights, diversity and gender. And personal injury lawyers are playing a role in these fights as they take on cases related to protests, police misconduct and sex crimes.
These topics feature heavily at this year’s Blockbuster, the annual conference organized by the Colorado Trial Lawyers Association, which will be held virtually Jan. 28 – 29.
“Since 2020 was such a huge year for social justice reform, we felt that it was important to carry that theme over into the presentations for Blockbuster. So we really wanted to focus on and advance diversity, equality, and inclusiveness,” said Blockbuster co-chair Lauren Varner.
“We really wanted to home in on what is ticking culturally and in our industry right now,” said Jennifer O’Connell, who is also a conference co-chair. She added that meant looking at how the work of CTLA members, who are mostly civil attorneys, intersects with the criminal justice system.
Lisi Owen, an attorney at Franklin D. Azar & Associates, will be presenting on qualified immunity in Colorado and the types of legal actions made possible by the state’s 2020 police reform bill. The new law creates a private right of action for people harmed by law enforcement, Owen said, but it only applies to local peace officers, meaning prisons and state agencies are still immune under the state law.
“The law was really designed to address law enforcement brutality as we understand it, even though police brutality probably includes a lot more things than getting shot in the street,” Owen said.
Despite the new law’s limitations, she calls it a “monumental first step.” “One of the things that I have found to be so interesting was this rapid shift in attention paid to the issue of qualified immunity,” said Owen, who has spent much of her career representing prisoners in lawsuits over prison conditions.
Owen said that in February, she filed a brief with the 10th Circuit in a case she has been working on since 2014. In the brief, she had some “pretty strong things to say” about why applying qualified immunity would be unjust. Owen said there was a “really huge shift” in the way federal courts in Colorado applied the qualified immunity doctrine in 2017, when the Supreme Court reversed a 10th Circuit decision in which qualified immunity was denied. After that, Owen said, the courts “got very gun shy” and started granting qualified immunity without exception.
“When I filed that brief, I remember thinking, ‘Wow, this is a real a real flier. It’s a Hail Mary,’” she said. But just months later, the state legislature passed a historic police reform bill creating a way around the qualified immunity defense.
As part of her presentation, Owen plans to point out some recent cases in which qualified immunity has been denied to help attendees identify what makes a strong case and the best course of action for their client. She said cases involving qualified immunity can be challenging, even for those with a lot of experience.
“I would consider myself a qualified immunity expert, along with a few other people in the state of Colorado,” Owen said. “And we still lose cases all the time.”
O’Connell said that when she and her co-chairs asked CTLA members what they wanted to see at this year’s conference, they heard from a number of civil rights practitioners who said they had been getting calls from personal injury attorneys who have been taking on more lawsuits dealing with police brutality, protests and the treatment of homeless people. But the personal injury lawyers often lack experience in civil rights cases.
“[The civil rights attorneys] said, ‘We welcome the help in this fight, because we need more brothers and sisters at arms. But we need to make sure that people aren’t simply taking up the sword and running with it without any training.’” O’Connell said.
The conversations inspired the conference organizers to include a full morning of presentations on topics related to civil rights and police brutality. In addition to Owen, speakers will include attorney Jamon Hicks of DH Law in Los Angeles, who will also discuss qualified immunity, and Huwe Burton, an exoneree represented by the Innocence Project, who will give a presentation on wrongful conviction and coerced confession. James Carter of The Cochran Firm in New Orleans will also speak on police brutality and the mentally disabled.
Blockbuster21 will also feature a presentation on sexual assault cases and trauma-informed practice by Laura Wolf of Spark Justice Law and Ash Arens, a social worker with the Rocky Mountain Victim Law Center.
Attorneys who represent sexual assault victims can risk retraumatizing their clients. Trauma-informed practice aims to avoid triggering and unnecessarily retraumatizing survivors. Wolf said that, at her firm, trauma-informed practice starts with the intake process. Her intake specialist is trained not ask about details of the assault and to let the victim know they don’t have to share any information they don’t want to.
Wolf said she typically provides a consultation for any sex assault case, even if it’s not one the firm will take, “just because I want the person to have that time with an attorney that is listening and understanding what they’ve been through.” In consultations, she tells survivors that they can share as little or as much as they want about the assault, and she lets them know that if they want to take a break, they can resume the call later.
According to Wolf, trauma-informed practice also means listening to clients’ needs and letting them settle for less money if the process of discovery and going to trial would be harmful or force them to relive their trauma over and over.
“I think our ethical obligation to our clients goes far beyond getting them the best damages award possible in their case,” Wolf said. “I think that our ethical obligation to our client is to explain the variety of options and how their case may go.”
Wolf said many attorneys are “not even aware that they should be thinking this way,” and lawyers who lack sensitivity to trauma tend to do so out of ignorance, rather than a rejection of trauma-informed practices. “I just think that we don’t train enough young lawyers in being trauma-informed,” she said.
Wolf added she is excited to be presenting with Arens, a social worker, as trauma-informed practice benefits from collaboration with mental health professionals. “The more that we can be working with people within the community of folks who help individuals from a mental health perspective and from a therapy perspective, the better,” Wolf said. “Because we’re not specialists in this. We’re not trained to do this.”
Another presentation, featuring Patty Powell of the University of Denver Sturm College of Law and Emma Shinn of Shinn Law Office, will deal with the topic of unconscious bias.
“They’re going to be talking about the prejudice that permeates our interactions with others and microaggressions, which are essentially an outgrowth of implicit or unconscious bias,” Varner said.
“I think that with many of our attorneys in Colorado, being older male attorneys who are white, they may not appreciate how present unconscious bias remains,” Varner said.
“So my belief is that awareness is the first step. We have the responsibility to examine our own conduct and see how it may be creating an unsafe work environment for others,” she addd. “And that doesn’t just include our attorneys and our staff that includes our clients.”
—Jessica Folker