Faculty of Federal Advocates Newsletter

Table of Contents:

• President's Annual Report by Paula Greisen
• Judge Krieger and Judge Blackburn Discuss Admission of Opinion Testimony at FFA Brown-Bag Presentation by Reid Neureiter
• Welcome, Magistrate Judge Michael Hegarty! by Lisa Christian
• Student Practice Rule by Laura Rovner
• Thank You from the Counsel/Co-Counsel Program
• Everything You Need to Know about Settlement Conferences by Reid Neureiter
• Thank you to Morrison & Foerster, LLP

President's Annual Report
by Paula Greisen

It has been another busy year for the Faculty.  The Tenth Circuit, district court, and magistrate judges have been generous with their time and participated in numerous well-attended brown bag CLEs.  Once again, it is time for our annual Roundtable with the district court and magistrate judges on October 28, 2006.  For those of you who have not yet participated in this event, it is a unique opportunity to meet with the judges in an informal setting and obtain valuable insight into their views about the practice in federal court.  The format this year will consist of two, forty-five minute sessions in which eight to ten practitioners are assigned to a table with an Article III judge or magistrate judge.  There will then be another session where all participants will discuss a question posed to the group, followed by a panel of judges discussing the use of technology during trial.  The theme of the meeting this year is “Creativity in Litigation,” and we hope that the discussion will challenge us to explore new approaches to our practice, both in the way we conduct litigation as well as our standards for civility.  Every year this is a sell-out event with many of the most experienced practitioners in our community participating, so register early to ensure your participation.

On December 7, 2006, we will also be having our annual meeting which is a one-half day CLE with the theme of  “Constitutional Rights and the Judiciary in the Post 9/11 World.”  Chief Judge Babcock will be speaking on the attack on the state and federal judiciary since 9/11.  The keynote address will be given by Brigadier General Thomas L. Hemingway and Holland & Hart partner Kip Mackintosh on detainee trials at Guantanamo Bay and the United States Supreme Court’s recent decision in Hamdan v. Rumsfeld.   After the panel discussion, the Faculty will be having a reception with the federal bench.  All members of the Faculty are welcome to attend the CLE and reception.

I would like to express my appreciation to all of you who participated this year in the Faculty’s Pro Bono Mentoring Program.  As many of you know, this program is designed to provide representation to pro se litigants in both the federal and bankruptcy courts.  The litigants are assigned to new practitioners who want the experience of actually litigating a case.  Experienced practitioners help these newer members of our court navigate their way through the perils of the system.  This year, the Faculty obtained approval for participants in the Mentoring Program to receive CLE credit for their pro bono service.  (Many thanks to Lanny Anderson for his work obtaining this approval.)

As you may know, the Faculty assists in defraying the costs of this representation by paying some of the costs of the litigation.  Thus, the long-term viability of the Program depends on the generosity of the participants to donate back to the Program in the event they receive compensation for their services in an attorney fee or other award.  I am very pleased to acknowledge that the Faculty recently received a very generous contribution from Morrison & Foerster as a result of an associate with the firm successfully litigating a religious freedom case for the Mentoring Program.  The contribution by Morrison & Foerster was over $50,000 and is the largest single donation the FFA has received to date.

Participants in the Bankruptcy Pro Bono Program have also been creative in finding ways to contribute to the Program’s funding resources.  For instance, Tom Seawell recently obtained sanctions in a bankruptcy case that were donated back to the bankruptcy program.  Another bankruptcy practitioner, and current FFA board member, J. Smiley secured a distribution from non-distributed funds in a class action bankruptcy case(that was not through the Mentoring Program) for the Program.  All of these generous and creative approaches ensure that the FFA’s mentoringprograms will retain the ability to assist practitioners in the representation of these cases.

[top of page]

Judge Krieger and Judge Blackburn Discuss Admission of Opinion
Testimony at FFA Brown-Bag Presentation
by Reid Neureiter

On May 25, 2006, District Judges Marcia Krieger and Robert Blackburn participated in a moderated discussion entitled, "How to Get Your Expert Opinion into Evidence."  The discussion was moderated by Reid Neureiter with assistance from Peter Bornstein.  The format included the presentation of commentary about the use and interpretation of Fed. R. Evid. 702 from the Advisory Committee Notes to that Rule.   Judges Krieger and Blackburn had outlined in advance the types of problems and issues lawyers struggle with as they attempt, with various degrees of success, to get expert or opinion testimony admitted into evidence

Both judges emphasized that the touchstone for opinion testimony is the text of Rule 702.  Judge Krieger noted that many lawyers have the Supreme Court's Daubert  and Kumho Tire opinions in the forefront of their minds when seeking to admit opinion testimony.  However, the year 2000 amendments to Rule 702 in some ways broaden and in other ways narrow the kinds of opinions that may be properly admitted into evidence.  The Rule, and not Daubert and Kumho, should be the basis for the admission of opinion evidence.  Both judges explained in detail the specific procedures they use in considering and deciding a challenge to opinion testimony.  Judge Blackburn usually decides any such challenge on the detailed papers submitted, while Judge Krieger requires a joint motion submitted by both parties laying out the opinion to be presented and any challenge to that opinion.  Judge Krieger will then usually conduct a formal 702 hearing where the challenged expert presents his or her opinion.  All attorneys are well-advised to review the specific procedures of the judge before whom they are appearing, as Rule 702 permits federal trial judges to design their own procedures for exercising their "gatekeeper" role that they must play under Rule 702.

[top of page]

Welcome, Magistrate Judge Michael Hegarty!
by Lisa Christian

Our newest magistrate judge, Michael Hegarty, took the bench on February 15, 2006 and reports that he is enjoying his new position tremendously.  He especially enjoys meeting the attorneys who appear before him, helping people to solve their disputes through the settlement conference process, and getting to know the court family from the “inside.”  He says that all of the judges have been extremely gracious in showing him the ropes, and the other magistrate judges have been very helpful in guiding him through the finer points of the position.  His chambers staff (two law clerks and a deputy) and Clerk’s Office staff (especially Clerk of the Court Greg Langham and Deputy Clerk Steve Ehrlich) have been a delight to work with.

Magistrate Judge Hegarty brings a wealth of federal litigation experience to his new position.  Most recently, he served for fourteen years as an Assistant U.S. Attorney (AUSA) with the Civil Division of U.S. Attorney’s Office in Denver, including six months as Deputy Chief and over three years as Chief of the Civil Division.  As an AUSA, Magistrate Judge Hegarty represented the United States and its agencies in a wide range of cases including employment, environmental, lands, tort, and administrative law cases, and represented individual federal employees in Bivens cases.  He also represented several Indian tribes in Colorado and New Mexico, under the tribes’ unique legal trust relationship with the United States.  The tribal cases honed not only his litigation skills, but also his skills as a mediator.  During his years as an AUSA, he tried approximately 20 cases, won many on motions, successfully settled many more, and handled approximately 100 federal appeals.  As Chief of the Civil Division, he supervised up to 16 AUSAs, an equal number of support staff, and some 1,500 pending cases, virtually all in federal court.

Magistrate Judge Hegarty graduated with honors from Kansas State University, and then studied in West Germany.  He received his law degree in 1986 from the University of Kansas, where he served as Technical Editor of the law review and graduated Order of the Coif.  At the University of Kansas, Magistrate Judge Hegarty received the Walter Hiersteiner Award for Significant Service to Society in the area of education.

Following graduation, Magistrate Judge Hegarty clerked for U.S. District Judge Dale Saffels in Kansas.  He recalls the clerkship fondly as a formative experience which sparked his interest in becoming a judge himself one day.  When Judge Saffels died in 2002, the Saffels family asked Magistrate Judge Hegarty to deliver the eulogy.

From Kansas City, Magistrate Judge Hegarty joined the law firm of Arnold & Porter, working first in its Washington, D.C. office in the antitrust and environmental law sections, and then in its Denver office where he focused on securities law.  In 1992, he joined the U.S. Attorney’s Office.

Public service, both within and outside the legal community, has always been a priority for Magistrate Judge Hegarty.  He has served as a Board member and Treasurer on the Faculty of Federal Advocates, participated in Court committees relating to case administration and government litigation, taught at the Department of Justice’s National Advocacy Center in South Carolina, organized training workshops for federal agency attorneys, and audited other U.S. Attorneys’ Offices for the Department of Justice.  He served as a volunteer EEO counselor and mediator in federal agency employment discrimination cases around the country, in many situations helping the parties to resolve their disputes without the need for litigation.

Outside the office, he has generously served on the boards of his church (Faith Bible Chapel in Arvada); the Rocky Mountain Family Council (which promotes policies to strengthen marriage and the family); and Christian Family Services (a local adoption agency).  In addition, he has remained actively involved with the Boy Scouts, where he has held a series of leadership positions while watching, so far, the three oldest of his six sons become Eagle Scouts.  Including his wife and five daughters in the mix (and home schooling all the children), he has quite a handful at home as well as on the job.

[top of page]

Student Practice Rule
by Lisa Christian

One year ago, the U.S. District Court for the District of Colorado adopted its first Student Practice Rule, by which law students, under the supervision of law school clinical faculty, may represent clients before the court.  (See General Order 2005-3, which may be viewed at http://www.co.uscourts.gov/gen_ord_frame.htm)  I teach in the Civil Rights and Disability Law Clinic (CRDLC) at the University of Denver Sturm College of Law, which has been one of the primary beneficiaries of the rule.  The CRDLC was founded in 2004 with two main goals:  first, to provide our law students with the opportunity to gain experience in substantive civil rights law and federal practice; and second, to represent people in our community who otherwise would not have access to legal representation.   The CRDLC is the most recent addition to DU’s clinical education program (the Student Law Office), which celebrated its 100th anniversary in 2004.

In the past year, students in the CRDLC have represented clients before the court in cases involving discrimination on the basis of race, sex, religion, disability, and national origin in employment and public accommodations.  We are also interested in prisoners’ rights cases, and anticipate adding some of these matters to our docket next year.  Most of the clinic’s clients are referred to us by the court, typically after the plaintiffs have filed their cases pro se and prevailed on a motion for appointment of counsel.  We also accept referrals from private attorneys and community organizations.  The CRDLC does not charge clients for our representation.

The adoption of the Student Practice Rule has provided significant learning opportunities for our students, particularly those who seek to pursue careers involving federal practice.  Recognizing that only a tiny percentage of civil cases filed in the District of Colorado go to trial, the CRDLC provides students some instruction in and experience with trial practice, but primarily emphasizes the development of pretrial skills such as interviewing, counseling, complaint drafting, development of case theory, litigation planning, discovery, motion practice and negotiation.  Students enroll in the CRDLC for two semesters and receive academic credit for their work on behalf of their clients.

[top of page]

Thank You from the Counsel/Co-Counsel Program

The Faculty of Federal Advocates Counsel/Co-Counsel Program wishes to thank Karen Robinson of PHM Robinson and Associates, Leonard Macphee of Perkins Coie, Sheldon Friedman of Isaacson Rosenbaum Woods & Levy, Steven Abelman of Cage Williams Abelman & Layden, Chad King of Townsend & Townsend & Crew, Melvin Sabey of Kutak Rock, Brian Hoffman of Morrison & Foerster, Romney Phillpot of Perkins Coie, Christopher Koupal of Chalat Hatten Law Offices, Joseph Mellon of Shughart Thomson & Kilroy, Joseph Jaros of Holland and Hart, Greg Whitehair of Gibson Dunn & Crutcher, Andrew Brake of Andrew Brake, PC, Timothy O'Neill of Snell & Wilmer, Mary Birk of Baker & Hostetler, John McNamara of John A. McNamara, PC,  and David Sipiora of Townsend & Townsend & Crew for accepting cases this year as part of the program.  The program provides needed legal representation to pro se litigants in cases referred by the U.S. District Court.  Through the program, experienced mentor attorneys are paired with attorneys with less experience in federal court.  This provides a unique learning opportunity for a newer attorney and allows a mentor lawyer to take a case with the assistance of co-counsel.

[top of page]

Everything You Need to Know about Settlement Conferences
by Reid Neureiter

On June 9, 2006, the Faculty of Federal Advocates presented a continuing legal education program entitled "Everything You Need to Know about Settlement Conferences."  The program was intended to educate federal practitioners about different aspects of settling cases in federal court both at the trial and the appellate levels.  The program consisted of two panel presentations and a presentation on settling cases in the 10th Circuit Court of Appeals.

The first panel included Magistrate Judges Patricia Coan and Craig Schaeffer, and private attorney and mediator Joseph Epstein.  Paula Greisen moderated this discussion which addressed how to prepare the client and the settlement judge or mediator for the conference.  All panelists emphasized the importance of candidly evaluating the case, disclosing strengths and perceived weaknesses to the neutral mediator, and preparing the client well in advance for the settlement conference.  The second panel included Magistrate Judge Michael Watanabe and private attorney and mediator Kathryn Miller, in addition to Magistrate Judge Coan and Mr. Epstein.  Reid Neureiter moderated this second panel, which addressed tactics and techniques during the conference.

On June 9, 2006, the Faculty of Federal Advocates presented a continuing legal education program entitled "Everything You Need to Know about Settlement Conferences."  The program was intended to educate federal practitioners about different aspects of settling cases in federal court both at the trial and the appellate levels.  The program consisted of two panel presentations and a presentation on settling cases in the 10th Circuit Court of Appeals.

[top of page]

Thank you to Morrison & Foerster, LLP

THE FACULTY OF FEDERAL
ADVOCATES

Wishes to Thank the Law Firm of

MORRISON & FOERSTER, LLP

For Their Generous Donation of over Fifty-Nine Thousand Dollars to the
Faculty of Federal Advocates Programs.

The Faculty of Federal Advocates would also like to thank the

 COLORADO BAR FOUNDATION

for their generous grant to the FFA in 2005 and 2006!

Comments and Contact Information

IF YOU HAVE ANY COMMENTS OR AN ARTICLE YOU WOULD LIKE CONSIDERED FOR
PUBLICATION PLEASE SUBMIT TO:

FACULTY OF FEDERAL ADVOCATES
PO BOX 12025
DENVER, CO 80212-0025
OR EMAIL: pmurphyffa@aol.com

[top of page]