Colorado Supreme Court Justice Richard Gabriel on Feb. 26 welcomed a room of attorneys and judges to the Colorado Judicial Institute’s Straight Talk with Judges CLE event. A crowded room of attorneys met for a networking hour before the program started at Holland & Hart’s Denver office.
Gabriel, who has been involved with the Our Courts program for the CJI and the Colorado Bar Association since its inception in 2007, said the judicial institute has given roughly 700 presentations to more than 40,000 people.
The program on Wednesday evening consisted of three different classroom talks by judges, running simultaneously for nearly two hours. Attendees could pick which order they attended the talks, ensuring group sizes remained smaller for a more personal experience with the judges. Lawyers who went to the event got two general CLE credits and 1.6 EDI credits.
Christopher Cross, a retired county and district court judge, spoke about his new book “Beat the Drum for Justice.” His talk focused on the history of diversity in the legal profession and the current makeup of Colorado’s judiciary.
“We are repeating history,” Cross told a crowded room of lawyers, holding his book aloft. He said the Supreme Court’s language in its recent decisions includes legal language from centuries ago, something he asserted is sending modern precedents back in time to the 1800s or earlier.
Cross also noted that the diversity, equity and inclusion credits the participants were earning in the very moment he spoke to them may soon be a thing of the past. He urged lawyers to continue to seek these kinds of educational opportunities out, even if state bars no longer require the credits
“DEI is intended to make people visible,” Cross told the room. “If you don’t understand the history, then you can say we don’t have a problem today.”
Colorado Supreme Court Justice Maria Berkenkotter alongside 2nd Judicial District Court Judge J. Eric Elliff spoke about the top 10 things attorneys should and shouldn’t do during trial and oral argument.
They counseled against speaking objections, recommending instead that lawyers rise and respectfully say “objection,” and then if prompted to continue, to only say a single word like “hearsay.” If the judge needs more than that, Berkenkotter and Elliff said attorneys could then approach the bench.
In a similar vein, they also advised to avoid “the pivot” and to carefully answer any questions from judges at trial as they may be a lifeline for trial attorneys to discover the “pink elephant” in their argument. Berkenkotter explained the “pink elephant” is the weakest point in the case, where a jury or judge may be able to unravel their legal argument.
Berkenkotter encouraged trial attorneys to have a mock trial or practice run, even if they’re alone and filming themselves on a phone. Berkenkotter said lawyers can watch the recording to catch if their movements are too big or if their facial expressions aren’t fitting with the solemnity of the situation.
Everything is magnified in a courtroom, Berkenkotter explained, so attorneys should be mindful of how they are presenting themselves and of their attitude in general.
The two judges offered myriad other tips and advice for trial attorneys, answering questions from attendees seated at a large boardroom table together.
CLE participants could also attend an interactive lecture by 2nd Judicial District Judge Jon Olafson. Olafson’s presentation focused on practical tools legal professionals can use to de-bias their legal practice.
Olafson discussed how cognitive biases can form for attorneys and how they may function as a type of internal error. He explained biases can sometimes be a safety mechanism, and that some biases may be part of a cognitive process we go through as children where we categorize information without much factual backing and then fill in the gaps automatically while discarding information that contradicts initial assumptions.
The information, he said, may be updated throughout the rest of our lifetimes in the “filing cabinets” we make at a young age but the root of our biases may often stem from information that’s not very accurate.
To illustrate a type of bias, Olafson told the room full of attendees about his betta fish Harvey. After he noticed Harvey was acting strangely, he scoured the internet to find the source of the issue, searching desperately for what might have been wrong with Harvey.
But Olafson said he realized that the problem may have actually been with the water in Harvey’s tank. “You assume people are swimming in the same water as you,” he explained. He noted that outside factors we don’t think of or see may influence how a person acts or reacts, especially in the stressful environment of a courtroom.
Olafson offered a possible remedy for the attorneys in attendance, saying that being aware of your conscious and unconscious biases can allow you to recognize when your information doesn’t match your assumptions. He said slowing down and changing your location may also help.
If you see Olafson in his courtroom, he said you may see him writing at a furious pace on the bench as he checks his own biases.